FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
Commission file number 1-9340
REEBOK INTERNATIONAL LTD.
_________________________________________________________________
(Exact name of registrant as specified in its charter)
Massachusetts 04-2678061
____________________________________ ____________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Technology Center Drive, Stoughton, Massachusetts 02072
_________________________________________________________________
(Address of principal executive offices) (Zip Code)
(617) 341-5000
_________________________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes (X) No ( )
The number of shares outstanding of registrant's common stock,
par value $.01 per share, at August 8, 1997, was 56,260,223
shares.
<PAGE>
REEBOK INTERNATIONAL LTD.
INDEX
PART I. FINANCIAL INFORMATION:
Item 1 Financial Statements (Unaudited)
Consolidated Condensed Balance Sheets - June 30, 1997
and 1996, and December 31, 1996 . . . . . . . . 2-3
Consolidated Condensed Statements of Income - Three
and Six Months Ended June 30, 1997 and 1996 . . 4
Consolidated Condensed Statements of Cash Flows -
Six Months Ended June 30, 1997 and 1996 . . . . 5-6
Notes to Consolidated Condensed Financial
Statements . . . . . . . . . . . . . . . . . . 7-8
Item 2
Management's Discussion and Analysis of Results
Of Operations and Financial Condition . . . . . 9-15
Part II. OTHER INFORMATION:
Item 1 Legal Proceedings . . . . . . . . . . . . . . . . 16
Items 2-5 Not Applicable . . . . . . . . . . . . . . . . . 16
Item 6 Exhibits and Reports on Form 8-K . . . . . . . . 16
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996 1996
(Unaudited) (Note)
______________ ____________
(Amounts in thousands)
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 122,307 $ 109,062 $ 232,365
Accounts receivable, net
of allowance for doubtful
accounts (June 1997,
$48,271; June 1996,
$49,408; December 1996,
$43,527) 656,832 654,549 590,504
Inventory 580,933 607,080 544,522
Deferred income taxes 71,677 63,696 69,422
Prepaid expenses and other
current assets 39,068 36,316 26,275
_________ _________ ________
Total current assets 1,470,817 1,470,703 1,463,088
_________ _________ _________
Property and equipment, net 182,796 191,933 185,292
Non-current assets:
Intangibles, net of
amortization 67,538 69,965 69,700
Deferred income taxes 9,558 5,862 7,850
Other 54,669 57,631 60,254
_________ _________ _________
131,765 133,458 137,804
_________ _________ _________
Total assets $1,785,378 $1,796,094 $1,786,184
========= ========= =========
</TABLE>
Note: The balance sheet at December 31, 1996 has been derived
from the audited financial statements at that date but
does not include all of the information and footnotes
required by generally accepted accounting principles for
complete financial statements. See notes to condensed
consolidated financial statements.
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS (Continued)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996 1996
(Unaudited) (Note)
__________________ ____________
(Amounts in thousands, except share data)
<S> <C> <C> <C>
Current liabilities:
Notes payable to banks $ 61,196 $ 65,123 $ 32,977
Commercial paper 65,000
Current portion of
long-term debt 66,307 1,004 52,684
Accounts payable 190,653 183,481 196,368
Accrued expenses 200,323 187,893 169,344
Income taxes payable 60,309 71,204 65,588
Dividends payable 5,529
__________ __________ __________
Total current liabilities 578,788 579,234 516,961
__________ __________ __________
Long-term debt, net of
current portion 731,955 266,181 854,099
Minority interest 36,273 27,290 33,890
Commitments and contingencies
Outstanding redemption value
of equity put options 32,863
Stockholders' equity:
Common stock, par value
$.01; authorized 250,000,000
shares; issued June 30, 1997,
92,935,318; issued
June 30, 1996, 108,163,925;
issued December 31,1996,
92,556,295 929 1,082 926
Additional paid-in capital
Retained earnings 1,062,970 1,503,118 992,563
Less 36,716,227 shares
in treasury at cost (617,620) (617,620) (617,620)
Unearned compensation (208) (507) (283)
Foreign currency translation
adjustment (7,709) 4,453 5,648
__________ __________ __________
438,362 890,526 381,234
__________ __________ __________
Total liabilities and
stockholders equity $1,785,378 $1,796,094 $1,786,184
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated condensed
financial statements.
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(In thousands except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
____________________ _________________
1997 1996 1997 1996
____ ____ ____ ____
<S> <C> <C> <C> <C>
Net sales $ 841,059 $ 817,572 $1,771,100 $1,720,495
Other income (expense) (783) 766 313 1,528
_________ _________ __________ __________
840,276 818,338 1,771,413 1,722,023
Costs and expenses:
Cost of sales 517,548 505,304 1,091,360 1,057,095
Selling, general and
administrative expenses 274,715 274,551 546,397 538,095
Amortization of intangibles 860 629 1,620 1,255
Interest expense 16,305 6,808 32,218 13,336
Interest income (2,503) (3,090) (4,492) (4,240)
_________ _________ __________ __________
806,925 784,202 1,667,103 1,605,541
_________ _________ __________ __________
Income before income taxes 33,351 34,136 104,310 116,482
and minority interest
Income taxes 12,000 12,003 37,700 41,300
_________ _________ __________ __________
Income before minority
interest 21,351 22,133 66,610 75,182
Minority interest 1,029 2,320 6,104 6,954
_________ _________ __________ __________
Net income $ 20,322 $ 19,813 $ 60,506 $ 68,228
========= ========= ========== ==========
Net income per common share $ 0.35 $ 0.27 $ 1.03 $ 0.92
========= ========= ========== ==========
Dividends per common share $ 0.000 $ 0.075 $ 0.000 $ 0.15
========= ========= ========== ==========
Weighted average common and
common equivalent shares
outstanding 58,150 73,922 58,314 74,540
========= ========= ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated condensed
financial statements.
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
________________
1997 1996
____ ____
(Amounts in thousands)
<S> <C> <C>
Cash flows from operating activities:
Net income $ 60,506 $ 68,228
Adjustments to reconcile net income
to net cash provided by
operating activities:
Depreciation and amortization 22,704 18,302
Minority interest 6,104 6,954
Deferred income taxes (3,963) 1,153
Changes in operating assets and
liabilities:
Accounts receivable (81,056) (157,601)
Inventory (47,838) 18,532
Prepaid expenses (13,009) 8,786
Other 13,185 1,803
Accounts payable (98) 22,686
Accrued expenses 30,959 40,404
Income taxes payable (5,409) 23,082
__________ __________
Total adjustments (78,421) (15,899)
__________ __________
Net cash (used for) provided by
operating activities (17,915) 52,329
__________ __________
Cash flows from investing activity:
Payments to acquire property and
equipment (17,574) (19,407)
__________ __________
Net cash (used for)
investing activity (17,574) (19,407)
__________ __________
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (Cont'd)
(Unaudited)
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended
June 30,
___________________
1997 1996
____ ____
(amounts in thousands)
<S> <C> <C>
Cash flows from financing activities:
Net borrowings of notes payable to banks $ 28,746 $ 13,667
Proceeds from issuance of commercial paper 65,000
Payments of long-term debt (108,320)
Proceeds from issuance of common stock to
employees 9,902 2,688
Dividends paid, including dividend
payments to minority shareholders (1,600) (11,222)
Proceeds from premium on equity put options 717
Repurchases of common stock (64,391)
________ ________
Net cash (used for) provided by
financing activities (71,272) 6,459
________ ________
Effect of exchange rate changes on cash
and cash equivalents (3,297) (10,712)
________ ________
Net increase(decrease) in cash and cash (110,058) 28,669
equivalents ________ ________
Cash and cash equivalents at beginning of period 232,365 80,393
________ _________
Cash and cash equivalents at end of period $ 122,307 $ 109,062
======== =========
Supplemental disclosures of cash flow information:
1997 1996
____ ____
Cash paid during the period for:
Interest $ 34,708 $ 13,279
Income taxes 30,813 24,955
</TABLE>
The accompanying notes are an integral part of the consolidated condensed
financial statements.
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except per share data)
NOTE 1 - BASIS OF PRESENTATION
______________________________
The accompanying unaudited condensed consolidated financial
statements have been prepared in accordance with generally
accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted
accounting principles for complete financial statements. In the
opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation
have been included. Operating results for the six months ended
June 30, 1997 are not necessarily indicative of the results that
may be expected for the year ended December 31, 1997. For
further information, refer to the consolidated financial
statements and footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
NOTE 2 - CONTINGENCIES
______________________________
On August 29, 1995, the Company obtained a favorable ruling
on its motion for summary judgment in the lawsuit entitled Stutz
Motor Car of America, Inc. v. Reebok International Ltd., (filed
on July 1, 1993 in the Central District of Los Angeles County
Superior Court as Case Number BC074579 and removed to the United
States District Court for the Central District of California
where it was assigned Civil Action No. 93-4433LGB) and, as a
result, the case was dismissed. The Plaintiff appealed and a
decision was issued by the Federal Circuit on May 16, 1997
affirming the District Court's decision in full. The Plaintiff
has petitioned for Certiorari before the Supreme Court, which the
Company believes is without merit and will be denied.
NOTE 3 - SIGNIFICANT ACCOUNTING POLICIES
___________________________________________
In February 1997, the Financial Accounting Standards Board
issued Statement No. 128, Earnings Per Share, which is required
to be adopted on December 31, 1997. At that time, the Company
will be required to change the method currently used to compute
earnings per share and to restate all prior periods. Under the
new requirements for calculating basic earnings per share, the
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<PAGE>
dilutive effect of stock options will be excluded. The impact is
expected to result in an increase in primary earnings per share
for the second quarter ended June 30, 1997 of $.01 per share with
no effect on the June 30, 1996 earnings per share. For the six
months ended June 30, 1997 and 1996 the impact is expected to
increase primary earnings per share by $.05 and $.01 per share,
respectively. The impact of Statement No. 128 on the calculation
of fully diluted earnings per share for these periods is not
expected to be material.
NOTE 4 - DEBT AGREEMENT
_______________________
On July 1, 1997, the Company amended and restated its
$1,700,000 Credit Agreement which was entered into on August 23,
1996 in conjunction with the Dutch Auction self-tender Stock
Repurchase. The amendment reduced the revolving credit portion
of the facility from $750,000 to $400,000 and left the remaining
portion of the six-year term loan of $533,777 on substantially
the same payment schedule after adjusting for the $100,000 in
optional prepayments made in 1997. As part of the amendment, the
commitment fees the Company is required to pay on the unused
portion of the revolving credit facility as well as the borrowing
margins over the London Interbank Offer Rate paid on the term
loan and used portion of the revolving credit facility were
reduced. The amendment further removed or relaxed various
covenants including the restrictions on asset acquisitions and
sales, capital expenditures, future indebtedness and investments.
All other material terms and conditions of the Credit Agreement
remain unchanged.
-8-
<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following table shows the percentage which amounts in the Consolidated
Condensed Statements of Income bear to net sales:
<TABLE>
<CAPTION>
Percentage of Net Sales
_______________________
Three Months Ended Six Months Ended
June 30, June 30,
__________________ __________________
1997 1996 1997 1996
____ ____ ____ ____
<S> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0%
Other income (expense) (0.1) 0.1 0.0 0.1
______ ______ _____ _____
99.9 100.1 100.0 100.1
Costs and expenses:
Cost of sales 61.5 61.8 61.6 61.4
Selling, general and
administrative expenses 32.7 33.6 30.9 31.3
Amortization of intangibles 0.1 0.1 0.1 0.1
Interest expense 1.9 0.8 1.8 0.8
Interest income (0.3) (0.4) (0.3) (0.2)
______ ______ _____ _____
95.9 95.9 94.1 93.3
______ ______ _____ _____
Income before income taxes
and minority interest 4.0 4.2 5.9 6.8
Income taxes 1.4 1.5 2.1 2.4
______ ______ _____ _____
Income before minority interest 2.6 2.7 3.8 4.4
Minority interest 0.1 0.3 0.3 0.4
______ ______ _____ _____
Net income 2.5% 2.4% 3.5% 4.0%
====== ====== ===== =====
</TABLE>
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<PAGE>
REEBOK INTERNATIONAL LTD. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion contains forward-looking statements
which involve risks and uncertainties. All such forward-looking
statements necessarily represent only current estimates or
expectations as to future results and there can be no assurance
that actual results will not materially differ from current
estimates or expectations. Factors that might cause such a
difference include, but are not limited to, the matters discussed
in Attachment A to this Quarterly Report on Form 10-Q.
Operating Results
_________________
Second Quarter 1997 Compared to Second Quarter 1996
___________________________________________________
Net sales for the quarter ended June 30, 1997 were $841.0
million, an increase of 2.9% from 1996's second quarter net sales
of $817.6 million, which included $22.6 million of sales from the
Company's Avia subsidiary that was sold in June 1996. The Reebok
Division's worldwide sales in the second quarter of 1997 were
$722.5 million, an increase of 4.8% from $689.3 million in the
second quarter of 1996. U.S. footwear sales of the Reebok
Division during the second quarter of 1997 decreased 4.0% to
$308.5 million from $321.2 million in the second quarter of 1996.
This decrease in the Reebok Division's U.S. footwear sales is
attributed primarily to decreases in the basketball, outdoor, and
children's categories partially offset by increases in Reebok's
running, men's cross-training and soccer categories, as well as
increases in Reebok's retail store sales. In addition, a portion
of the sales decrease is directly attributable to a significantly
improved inventory position which resulted in a reduction in off-
price sales during the second quarter of 1997. The quality of
Reebok footwear sales improved from last year despite the
decrease in sales in the quarter. During the second quarter of
1997, sales to athletic specialty accounts increased by 34.0% and
off-price sales accounted for approximately 3.0% of U.S. footwear
sales, a significant reduction from prior year. The Reebok
Division's U.S. apparel sales increased by 31.3% to $88.0 million
from $67.0 million in 1996. The increase resulted primarily from
increases in sales of branded core basics and graphics
categories. The Reebok Division's International sales (including
both footwear and apparel) were $326.0 million in the second
quarter of 1997, an increase of 8.3% from $301.1 million in the
second quarter of 1996. Internationally, both footwear and
apparel
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<PAGE>
reported sales increases. International sales comparisons were
negatively impacted by changes in foreign currency exchange
rates. In constant dollars, the International footwear sales
increased 8.2% and the International apparel sales increased
28.1% yielding an overall sales gain of 11.9%. Increases in the
running and classic footwear categories were partially offset by
decreases in the basketball and cross-training footwear
categories. All International regions had sales increases on a
constant dollar basis as follows: Asia Pacific 26%, new market
territories 23%, Latin America 12% and Europe 8%.
Rockport's second quarter sales increased by 12.2% to $118.6
million from $105.7 million in the second quarter of 1996.
Exclusive of the Ralph Lauren business, Rockport's sales
increased 4.6% in the quarter due to continued International
sales growth and increases in the retail division. Increased
sales in the walking category were partially offset by decreased
sales in the women's lifestyle category. Rockport's
International revenues, which grew by over 50%, accounted for
approximately 18% of the sales in the second quarter. Rockport
continues to execute its product segmentation strategy in the
U.S., thereby reducing the number of rooftops where premier
product is available.
The Company's gross margins in the second quarter of 1997
were 38.5% as compared with 38.2% in the second quarter of 1996.
Excluding the impact of Avia, gross margins declined in the
second quarter from 38.7% in 1996 to 38.5% in 1997. Looking
forward, the Company expects substantial margin pressure over at
least the next twelve months, primarily as a result of its new
footwear technologies. In order to satisfy consumer demand, the
Company is ramping up capacity at the same time it is gaining the
technical knowledge necessary to produce these products more
efficiently. In addition, the impact of air freight costs of
both parts and finished products continues to negatively impact
margins.
Selling, general and administrative expenses for the second
quarter of 1997 were $274.7 million or 32.7% of sales, as
compared to $274.6 million, or 33.6% of sales in 1996's second
quarter. While the spending remained constant, there were
significant changes in the makeup of these costs. During the
quarter the Company increased product research, design and
development expenses by 34%
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<PAGE>
over the prior year's quarter. The Company expects to continue
to invest heavily in product development for the foreseeable
future. Retail operating expenses increased by 20% in the
quarter in support of new store openings and advertising expense
remained flat quarter to quarter. General and administrative
support expenses declined in the quarter by about 10%.
Interest expense increased as a result of the additional
debt the Company incurred to finance the shares acquired during
the 1996 Dutch Auction self-tender.
The effective tax rate before minority interest was 36.0% in
the second quarter of 1997 as compared to 35.2% in the second
quarter of 1996. The change was due to a geographic change in
the mix of worldwide income.
Year-to-year earnings per share comparisons benefited from
the Company's share repurchase programs including the Dutch
Auction self-tender which was completed in August 1996. Weighted
average common shares outstanding for the quarter ended June 30,
1997 declined by 20.7% to 58.6 million shares, as compared to
73.9 million shares for the second quarter of 1996.
First Six Months 1997 Compared to First Six Months 1996
_______________________________________________________
Net sales for the six months ended June 30, 1997 increased
by $50.6 million, or 2.9% from the first six months of 1996,
which included $49.4 million of sales from the Company's Avia
subsidiary that was sold in June 1996. The Reebok Division's
worldwide sales were $1.534 billion for the first six months of
1997, an increase of 3.7% from sales of $1.479 billion for the
same period in 1996. The Reebok Division's U.S. footwear sales
decreased 1.8% to $643.1 million from $654.8 million in the same
period of 1996. This decrease in the Reebok Division's U.S.
footwear sales is attributed primarily to decreases in the
basketball, outdoor, and children's categories. The decrease in
sales was partially offset by increases in Reebok's running,
soccer and men's cross-training categories, as well as increases
in Reebok's retail store sales. The Reebok Division's U.S.
apparel sales increased by 44.2% to $185.9 million from $128.9
million in 1996. The increase resulted primarily from increases
in branded core basics and graphics categories. The Reebok
Division's International sales (including footwear and apparel)
were $705.1 million for the first six months of 1997, an increase
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<PAGE>
of 1.3% from $695.8 million for the same period in 1996.
Increases in the running and classic footwear categories were
offset by decreases in the basketball and cross-training footwear
categories. International sales comparisons were negatively
impacted by changes in foreign currency exchange rates. On a
constant dollar basis for the six month period, the International
sales increase was 6.3%. All International regions generated
sales increases over the prior year on a constant dollar basis.
Rockport's sales for the six-month period increased by 23.7%
to $237.0 million from $191.6 million for the same period in
1996. Exclusive of the Ralph Lauren business, Rockport's sales
increased 11.4% in 1997 due to continued International sales
growth and increases in the Retail Division. Increased sales in
the walking category were partially offset by decreased sales in
the women's lifestyle category. Rockport's International
revenues, which grew by over 50%, accounted for approximately 18%
of sales during the first six months of 1997.
The Company's gross margins in the first six months of 1997
were 38.4% as compared with 38.6% for the same period in 1996.
Excluding the impact of Avia, gross margins declined in the first
six months of 1997 from 39.1% in 1996 to 38.4% in 1997. Looking
forward, the Company expects substantial margin pressure over at
least the next twelve months, primarily as a result of its new
footwear technologies. In order to satisfy consumer demand, the
Company is ramping up capacity at the same time it is gaining the
technical knowledge necessary to produce these products more
efficiently. In addition, the impact of air freight costs of
both parts and finished products continues to negatively impact
margins.
Selling, general and administrative expenses for the first
six months of 1997 were $546.4 million, or 30.9% of sales as
compared to $538.1 million, or 31.3% of sales in the first six
months of 1996. While these expenses increased by only $8.3
million or 1.5%, there were significant changes in the make-up of
these costs. During the first six months of 1997 the Company
increased the product research, design and development expenses
by 30% over the first six months of 1996. The Company expects to
continue to invest heavily in product development for the
foreseeable future. Retail operating expenses increased in 1997
in support of new store openings and advertising expense
decreased during the first six months of 1997 as
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<PAGE>
compared to the same period last year. General and
administrative support expenses declined during the six months
ended June 30, 1997 by about 7% as compared to the six months
ended June 30, 1997. Looking ahead to the remainder of 1997, the
full year SG&A spending is expected to increase versus 1996,
primarily due to increases in product development and retail
operating expenses. However, as a percent of sales, the SG&A
spending should decline when compared with 1996 levels.
Interest expense increased as a result of the additional
debt the Company incurred to finance the shares acquired during
the 1996 Dutch Auction self-tender.
The effective tax rate before minority interest was 36.1%
for the first six months of 1997 as compared to 35.5% in the
first six months of 1996. The change was due to a geographic
change in the mix of worldwide income.
Year-to-year earnings per share comparisons benefited from
the Company's share repurchase programs, including the Dutch
Auction self-tender which was completed in August 1996. Weighted
average common shares outstanding for the six months ended June
30, 1997 declined to 58.5 million shares, compared to 74.5
million shares for the first six months of 1996.
Reebok Brand Backlog of Open Orders
___________________________________
The Reebok Brand backlog of open customer orders for the
period July 1 through December 31, 1997 increased 20.2% as
compared to the same period last year. North American backlog,
which includes the U.S. and Canada, increased 30.6% and the
International backlog increased 5.0%. On a constant dollar
basis, the International backlog increased 8.6%. U.S. footwear
backlog of open customer orders for the period July 1 through
December 31, 1997 increased 22.6% and U.S. apparel backlog
increased 50.3% as compared to the same period last year. U.S.
footwear orders from athletic specialty accounts increased 77.9%
with orders from the volume channel down 16.8% when compared to
the period July 1 through December 31, 1996. The Company is in
the process of repositioning the Brand more towards the upper end
of the market, which should ultimately benefit all channels of
distribution. These percentage increases in open backlog,
particularly in the U.S., are not necessarily indicative of
future sales trends. The reasons for this are that many orders
are cancelable, sales by company-owned retail stores can vary
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from year to year, most of the technology products are currently
not available for fill-in business and the ratio of orders booked
early to at-once shipments can vary from period to period.
Liquidity and Sources of Capital
________________________________
The Company's financial position remains strong. Working
capital was $892.0 million at June 30, 1997 and $891.5 million at
June 30, 1996. The current ratio at June 30, 1997 and 1996 was
2.5 to 1, as compared to 2.8 to 1 at December 31, 1996.
Although sales increased 2.9% in the 1997 second quarter,
the accounts receivable balance remained constant from June 30,
1996 when the amount was $654.5 million as compared to $656.8
million at June 30, 1997. The days sales outstanding in accounts
receivable improved to 69 days from 71 days at June 30, 1996.
Inventory decreased by $26.2 million or 4.3% from June 30, 1996.
U.S. Reebok brand footwear inventories declined 15.8%, U.S.
apparel inventories declined 6.5% and International inventories
decreased 5.0% from June 30, 1996. Rockport is the only major
division where inventories increased; up 22.3% from last year.
The Company continues to gain greater efficiencies in the
management of its inventories due to improvements in forecasting,
production planning and logistics.
During the twelve months ended June 30, 1997, cash and cash
equivalents increased $13.2 million and outstanding borrowings
increased by $462.2 million, while $616.9 million of the
Company's stock was repurchased. The Company elected to make pre-
payments of $50.0 million in February 1997 and $50.0 million in
May 1997 on the long-term debt facility used to fund the Dutch
Auction share repurchase in August 1996. Cash used by operations
during the first six months of 1997 was $17.9 million, as
compared to cash provided by operations of $52.3 million during
the first six months of 1996. The change in operating cash flow
year-to-year is attributable to improved inventory management
practices which had a significant impact in reducing 1996
inventory levels from the prior year thereby generating
significant cash in the prior year. Cash generated from
operations, together with the Company's existing credit lines and
other financial resources, is expected to adequately finance the
Company's current and planned 1997 cash requirements.
-15-
<PAGE>
PART II - OTHER INFORMATION
___________________________
Item 1 - Legal Proceedings
On August 29, 1995, the Company obtained a favorable ruling
on its motion for summary judgment in the lawsuit entitled Stutz
Motor Car of America, Inc. v. Reebok International Ltd., (filed
on July 1, 1993 in the Central District of Los Angeles County
Superior Court as Case Number BC074579 and removed to the United
States District Court for the Central District of California
where it was assigned Civil Action No. 93-4433LGB) and, as a
result, the case was dismissed. The Plaintiff appealed and a
decision was issued by the Federal Circuit on May 16, 1997
affirming the District Court's decision in full. The Plaintiff
has petitioned for Certiorari before the Supreme Court, which the
Company believes is without merit and will be denied.
Items 2 - 5
Not applicable
Item 6
(a) Exhibits:
10.1 Amended and Restated Credit and Guarantee Agreement,
dated as of July 1, 1997, among Reebok International
Ltd., Reebok International Limited, the Lenders and Co-
Agents named therein, Citibank N.A. as Documentation
Agent and Credit Suisse, as Administrative Agent
10.2 Amendment to the Reebok International Ltd. 1994 Equity
Incentive Plan approved by shareholders on May 1, 1997
10.3 Change of Control Agreement with Paul Duncan
10.4 Change of Control Agreement with James R. Jones, III
10.5 Change of Control Agreement with Angel Martinez
10.6 Change of Control Agreement with Robert Meers
10.7 Change of Control Agreement with Barry Nagler
10.8 Change of Control Agreement with Kenneth I. Watchmaker
11. Statement Re Computation of Per Share Earnings
27. Financial Data Schedule
(b) Reports on Form 8-K: There were no reports on Form 8-K
filed during the quarter ended June 30, 1997.
-16-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Dated: August 12, 1997
REEBOK INTERNATIONAL LTD.
BY: /s/ KENNETH WATCHMAKER
_________________________
Kenneth Watchmaker
Executive Vice President and
Chief Financial Officer
-17-
<PAGE>
Attachment A
ISSUES AND UNCERTAINTIES
The Company's quarterly report on Form 10-Q attached hereto
includes, and other documents, information or statements released
or made from time to time by the Company may include, forward-
looking statements. These statements involve risks and
uncertainties. The Company's actual results may differ
materially from those discussed in such forward-looking
statements. Prospective information is based on management's
then current expectations or forecasts. Such information is
subject to the risk that such expectations or forecasts, or the
assumptions underlying such expectations or forecasts, become
inaccurate. The following discussion identifies certain
important issues and uncertainties that are among the factors
that could affect the Company's actual results and could cause
such results to differ materially from those contained in forward
looking statements made by or on behalf of the Company.
Competition and Consumer Preferences
____________________________________
The footwear and apparel industry is intensely competitive
and subject to rapid changes in consumer preferences, as well as
technological innovations. A major technological breakthrough or
marketing or promotional success by one of the Company's
competitors could adversely affect the Company's competitive
position. In addition, in countries where the athletic footwear
market is mature (including the U.S.), sales growth may be
dependent in part on the Company increasing its market share at
the expense of its competitors, which may be difficult to
accomplish particularly in view of the Company's recent market
share decline in the U.S. footwear market. The Company also
faces strong competition with respect to its other product lines,
such as the ROCKPORT product line and the GREG NORMAN collection.
Competition in the markets for the Company's products occurs
in a variety of ways, including price, quality, product design,
brand image, marketing and promotion and ability to meet delivery
commitments to retailers. The intensity of the competition faced
by the various operating units of the Company and the rapid
changes in the consumer preference and technology that can occur
in the footwear and apparel markets constitute significant risk
factors in the Company's operations.
Inventory Risk
______________
The footwear industry has relatively long lead times for
design and production of product and thus, the Company must
commit to production tooling and in some cases to production in
advance of orders. If the Company fails to accurately forecast
consumer demand or if there are changes in consumer preference or
market demand after the Company has made such production
commitments, the Company may encounter difficulty in filling
customer orders or in liquidating excess inventory, which may
have an adverse effect on the Company's sales margins and brand
image.
Sales Forecasts
_______________
The Company's investment in advertising and marketing is
based on sales forecasts and is necessarily made in advance of
actual sales. The markets in which the Company does business are
highly competitive, and the Company's business is affected by a
variety of factors, including brand awareness, changing consumer
preferences, fashion trends, retail market conditions and
economic and other factors. There can be no assurance that sales
forecasts will be achieved, and to the extent sales forecasts are
not achieved, these investments will represent a higher
percentage of revenues, and the Company will experience higher
inventory levels and associated carrying costs, all of which
would adversely impact the Company's financial condition and
results.
Advertising and Marketing Investment
____________________________________
Because consumer demand for athletic footwear and apparel is
heavily influenced by brand image, the Company's business
requires substantial investments in marketing and advertising,
including television and other advertising, athlete endorsements
and athletic sponsorships, as well as investments in retail
presence. In the event that such investments do not achieve the
desired effect in terms of increased retailer acceptance and/or
consumer purchase of the Company's products, there could be an
adverse impact on the Company's financial results.
Retail Operations
_________________
The Company currently operates approximately 130 retail
stores in the U.S. and a significant number of retail stores
internationally which are operated either directly or through the
Company's distributors. The Company has made a significant
capital investment in opening these stores and incurs significant
expenditures in operating these stores. To the extent the
Company continues to expand its retail organization, the
Company's performance could be adversely affected by lower than
anticipated sales at its retail stores. The performance of the
Company's retail organization is also subject to general retail
market conditions.
Timeliness of Product
_____________________
Timely product deliveries are essential in the footwear and
apparel business since the Company's orders are cancelable by
customers if agreed delivery windows are not met. If as a result
of design, production or distribution problems, the Company is
late in delivering product, it could have an adverse impact on
its sales and/or profitability.
International Sales and Production
__________________________________
A substantial portion of the Company's products are
manufactured abroad and approximately 40% of the Company's sales
are made outside the U.S. The Company's footwear and apparel
production and sales operations are thus subject to the usual
risks of doing business abroad, such as currency fluctuations,
longer payment terms, potentially adverse tax consequences,
repatriation of earnings, import duties, tariffs, quotas and
other threats to free trade, labor unrest, political instability
and other problems linked to local production conditions and the
difficulty of managing multinational operations. If such factors
limited or prevented the Company from selling products in any
significant international market or prevented the Company from
acquiring products from its suppliers in China, Indonesia, the
Philippines or Thailand, or significantly increased the cost to
the Company of such products, the Company's operations could be
seriously disrupted until alternative suppliers were found or
alternative markets were developed, with a significant negative
impact.
Sources of Supply
_________________
The Company depends upon independent manufacturers to
manufacture high-quality product in a timely and cost-efficient
manner and relies upon the availability of sufficient production
capacity at its existing manufacturers or the ability to utilize
alternative sources of supply. In addition, if the Company were
to experience significant shortages in raw materials or
components used in its products, it could have a negative effect
on the Company's business, including increased costs or
difficulty in delivering product. Some of the components used in
the Company's technologies are obtained from only one or two
sources and thus a loss of supply could disrupt production.
Risk of Debt
____________
In connection with the Company's Dutch Auction share
repurchase, the Company incurred $640 million in additional debt
to finance the repurchase of shares (of which $50 million was
prepaid in February 1997 and an additional $50 million was
prepaid in May 1997) and entered into a $750 million revolving
credit line (which replaced its prior $300 million revolving
credit facility) which, in July 1997, was reduced to a $400
million facility. As a result of this debt, the Company
currently faces significantly increased interest expense and debt
amortization, as compared to the past. The credit arrangements
contain certain covenants (including restrictions on liens and
sales of assets and the requirements to maintain a minimum
interest coverage ratio and a minimum debt to cash flow ratio)
which are intended to limit the Company's future actions and
which may also limit the Company's financial, operating and
strategic flexibility. In addition, the Company's failure to
make timely payments of interest and principal on its debt, or to
comply with the material covenants applicable thereto, could
result in significant negative consequences.
The Company believes that its cash, short-term investments
and access to new credit facilities, together with its
anticipated cash flow from operations, are adequate for its needs
in the foreseeable future. However, the Company's actual
experience may differ from the expectations set forth in the
preceding sentence. Factors that might lead to a difference
include, but are not limited to, the matters discussed herein as
well as future events that might have the effect of reducing the
Company's available cash balances (such as unexpected operating
losses or capital or other expenditures) or that might reduce or
eliminate the availability of external financial resources.
Risk of Currency Fluctuations
_____________________________
The Company conducts operations in various international
countries and a significant portion of its sales are transacted
in local currencies. As a result, the Company's revenues are
subject to foreign exchange rate fluctuations. The Company
enters into forward currency exchange contracts and options to
hedge its exposure for merchandise purchased in U.S. dollars that
will be sold to customers in other currencies. The Company also
uses foreign currency exchange contracts and options to hedge
significant inter-company assets and liabilities denominated in
other currencies. However, no assurance can be given that
fluctuation in foreign currency exchange rates will not have an
adverse impact on the Company's revenues, net profits or
financial condition.
Customers
_________
Although the Company has no single customer that represents
10% or more of its sales, the Company has certain significant
customers, the loss of which could have an adverse effect on its
business. There could also be a negative effect on the Company's
business if any such significant customer became insolvent or
otherwise failed to pay its debts.
Intellectual Property
_____________________
The Company believes that its trademarks, technologies and
designs are of great value. From time to time the Company has
been, and may in the future be, the subject of litigation
challenging its ownership of certain intellectual property. Loss
of the REEBOK or ROCKPORT trademark rights could have a serious
impact on the Company's business. Because of the importance of
such intellectual property rights, the Company's business is
subject to the risk of counterfeiting, parallel trade or
intellectual property infringement. The Company is, however,
vigilant in protecting its intellectual property rights.
Litigation
__________
The Company is subject to the normal risks of litigation
with respect to its business operations.
Economic Factors
________________
The Company's business is subject to economic conditions in
the Company's major markets, including, without limitation,
recession, inflation, general weakness in retail markets and
changes in consumer purchasing power and preferences. Adverse
changes in such economic factors could have a negative effect on
the Company's business.
Tax Rate Changes
________________
If the Company was to encounter significant tax rate changes
in the major markets in which it operates, it could have an
adverse effect on its business.
Ability to Improve Performance of REEBOK Footwear Business
__________________________________________________________
The Company has recently taken steps which it believes may
improve the performance of its REEBOK footwear business. There
are, however, many uncertainties associated with accomplishment
of such an improvement. These include the decline in recent
years in the Company's share of the U.S. athletic footwear
market, slower overall growth in the U.S. athletic footwear
market, the emergence and growth of strong competitors, the
substantial and increasing investment by such competitors in
marketing and advertising, and the possibility of changing
consumer preferences. Moreover, while the Company has received
positive indications from certain retailers as to its new
products, and while the Company's U.S. athletic footwear backlog
figures for the second half of 1997 have increased, sustained
growth in the U.S. market will be dependent on a number of
factors, including retailer sell-through rates, consumer
acceptance of the new products and other factors described in
this Attachment A.
Quarterly Reports
_________________
The financial results reflected in the Company's quarterly
report on Form 10-Q are not necessarily indicative of the
financial results which may be achieved in future quarters or for
year-end, which results may vary.
<PAGE>
EXHIBIT 10.1
CONFORMED COPY
REEBOK INTERNATIONAL LTD.
REEBOK INTERNATIONAL LIMITED
____________________
$930,000,000
AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
dated as of July 1, 1997
____________________
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
CITIBANK, N.A.,
as Documentation Agent
CREDIT SUISSE FIRST BOSTON
<PAGE>
AMENDED AND RESTATED CREDIT AND GUARANTEE
AGREEMENT, dated as of July 1, 1997, among:
(a) REEBOK INTERNATIONAL LTD., a Massachusetts corporation (the
"Company");
(b) REEBOK INTERNATIONAL LIMITED, a United Kingdom corporation
("Reebok-UK"; together with the Company, the "Borrowers");
(c) the several banks and other financial institutions from time
to time parties to this Agreement (the "Lenders");
(d) each of the co-agents listed on the signature pages hereto
(the "Co-Agents");
(e) CITIBANK, N.A., as documentation agent (in such capacity,
the "Documentation Agent") for the Lenders hereunder; and
(f) CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation, as
administrative agent (in such capacity, the "Administrative
Agent") for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Company is party to the Credit Agreement,
dated as of August 23, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Existing Agreement"),
with banks and other financial institutions parties thereto, the
Co-Agents named therein and the Administrative Agent;
WHEREAS, the Company has requested that the Existing
Agreement be amended as set forth herein;
WHEREAS, each of the parties to the Existing Agreement
is agreeable to the requested amendments, but only upon the terms
and subject to the conditions set forth herein, and each of the
parties to the Existing Agreement, for convenience of reference,
has agreed to restate the Existing Agreement as so amended;
WHEREAS, each of the Lenders and the other parties
hereto are agreeable to the terms and provisions of the Existing
Agreement as amended and restated hereby;
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained, the parties to the Existing
Agreement agree that the Existing Agreement shall be and hereby
is amended and restated in its entirety and the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to
which is based upon the ABR.
"Administrative Agent": as defined in the preamble to
this Agreement.
"Affiliate": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the
election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether
by contract or otherwise.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Commitment Fee Rate": for each day, the
rate per annum set forth below opposite the Credit Rating then in
effect:
Debt Rating Commitment Fee
AA- or better by S&P and Aa3
or better by Moody's 6.0 b.p
A or better by S&P and A2 or better
by Moody's, but not AA- or better by
S&P and Aa3 or better by Moody's 7.0 b.p
A- or better by S&P and A3 or better
by Moody's, but not A or better by
S&P and A2 or better by Moody's 7.5 b.p
BBB+ or better by S&P and Baa1 or better
by Moody's, but not A- or better by
S&P and A3 or better by Moody's 8.5 b.p
BBB or better by S&P and Baa2 or better
by Moody's, but not BBB+ or better by
S&P and Baa1 or better by Moody's 12.0 b.p
BBB- or better by S&P and Baa3 or better
by Moody's, but not BBB or better by
S&P and Baa2 or better by Moody's 15.0 b.p
Otherwise 20.0 b.p
"Applicable Margin": for each Type of Loan for each
day, the rate per annum set forth below opposite the Credit
Rating then in effect:
Applicable Margin
Debt Rating ABR Loans Eurodollar
Loans
AA- or better by S&P and Aa3 or
better by Moody's 0 bp 18.0 bp
A or better by S&P and A2 or better
by Moody's, but not AA- or better by
S&P and Aa3 or better by Moody's 0 bp 22.5 bp
A- or better by S&P and A3 or better
by Moody's, but not A or better by S&P
and A2 or better by Moody's 0 bp 25.0 bp
BBB+ or better by S&P and Baa1 or
better by Moody's, but not A- or better
by S&P and A3 or better by Moody's 0 bp 30.0 bp
BBB or better by S&P and Baa2 or better
by Moody's, but not BBB+ or better by
S&P and Baa1 or better by Moody's 0 bp 32.5 bp
BBB- or better by S&P and Baa3 or better
by Moody's, but not BBB or better by
S&P and Baa2 or better by Moody's 0 bp 45.0 bp
Otherwise 0 bp 55.0 bp
"Assignee": as defined in subsection 13.6(c).
"Available Commitment": as to any Lender, at any time,
an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment over (b) the aggregate principal
amount of Revolving Credit Loans then outstanding.
"Borrower": as defined in the preamble hereto.
"Business": as defined in subsection 6.16(b).
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close; provided that, with
respect to matters relating to Eurodollar Loans, the term
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which commercial banks in New York City or London,
England, are authorized or required by law to close.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all
warrants or options to purchase any of the foregoing.
"Closing Date": the date on which the conditions
precedent set forth in subsection 7.1 shall be satisfied.
"Co-Agents": as defined in the preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment": as to any Lender, its Revolving Credit
Commitment, its Domestic Term Loan Commitment or its UK Term Loan
Commitment, as the context shall require.
"Commitment Percentage": as to any Lender at any date,
the percentage which such Lender's Domestic Term Loan Commitment,
UK Term Loan Commitment and Revolving Credit Commitment then
constitutes of the aggregate Domestic Term Loan Commitments, UK
Term Loan Commitments and Revolving Credit Commitments of all
Lenders (or, to the extent that any such Commitment has
terminated, the aggregate principal amount of Loans then
outstanding which were made under such Commitment).
"Commitment Period": the period from and including the
date hereof to but not including the Termination Date or such
earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with the Company
within the meaning of Section 4001 of ERISA or is part of a group
which includes the Company and which is treated as a single
employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
"Consolidated Net Income" or "Consolidated Net Loss":
for any fiscal period, the amount which, in conformity with GAAP,
would be set forth opposite the caption "net income" (or any like
caption) or "net loss" (or any like caption), as the case may
be, on a consolidated statement of earnings of the Company and
its Subsidiaries for such fiscal period;
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.
"Credit Rating": the rating publicly announced from
time to time by Moody's or S&P (as the context shall require) as
being in effect with respect to the senior, unsecured (and
non-credit enhanced), long-term Indebtedness of the Company.
"Credit Suisse First Boston": Credit Suisse First
Boston, a Swiss banking corporation.
"Default": any of the events specified in Section 11,
whether or not any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been
satisfied.
"Documentation Agent": as defined in the preamble to
this Agreement.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Subsidiary": any Subsidiary of the Company
organized under the laws of any jurisdiction within the United
States.
"Domestic Term Loan": as defined in subsection 2.1.
"Domestic Term Loan Commitment": as to any Lender, the
obligation of such Lender to make Domestic Term Loans to the
Company hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule II; as to all Lenders collectively, the
"Domestic Term Loan Commitments".
"Domestic Term Note": as defined in subsection 5.1(f).
"EBITDA": for any fiscal period, the Consolidated Net
Income or Consolidated Net Loss, as the case may be, for such
fiscal period, after restoring thereto amounts deducted for (a)
extraordinary losses (or deducting therefrom any amounts included
therein on account of extraordinary gains) and special charges
(including, without limitation, special charges on account of
Olympic spending during the 1996 fiscal year of the Company in an
amount not to exceed $12,500,000 for each fiscal quarter during
such fiscal year), (b) depreciation and amortization (including
write-offs or write-downs of amortizable and depreciable items),
(c) the amount of interest expense of the Company and its
Subsidiaries, determined on a consolidated basis in accordance
with GAAP, for such period on the aggregate principal amount of
their consolidated Indebtedness, (d) the amount of tax expense of
the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, for such period and (e) minority
interests.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees or other Requirements of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be
in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without duplication)
of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves
under any regulations of the Board of Governors of the Federal
Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such
Board) maintained by a member bank of such System.
"Eurodollar Base Rate": the rate per annum determined
by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the
beginning of the relevant Interest Period (as specified in the
applicable Notice of Borrowing) by reference to the British
Bankers' Association Interest Settlement Rates for deposits in
Dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of
this definition, the "Eurodollar Base Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in Dollars are
offered for such relevant Interest Period to major banks in the
London interbank market in London, England by the Reference Banks
at approximately 11:00 a.m. (London time) on the date which is
two Business Days prior to the beginning of such Interest Period.
If any of the Reference Banks shall be unable or shall otherwise
fail to supply such rates to the Administrative Agent upon its
request, the rate of interest shall, subject to the provisions of
subsection 5.9, be determined on the basis of the quotations of
the remaining Reference Banks or Reference Bank.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate per
annum determined for such day in accordance with the following
formula:
Eurodollar Base Rate
___________________________
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
Section 11, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, has
been satisfied.
"Federal Funds Effective Rate": for any day, the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which are
required in accordance with GAAP to be capitalized on a balance
sheet of the lessee.
"Fireman Group" Paul Fireman, his spouse, his parents,
his children, his grandchildren, the Paul and Phyllis Fireman
Trust, the PFP Charitable Trust, any other trusts of which Paul
Fireman is a trustee and any other charitable trusts created by
him.
"Foreign Subsidiary": any Subsidiary of the Company
organized under the laws of any jurisdiction outside the United
States of America.
"GAAP": generally accepted accounting principles in
the United States of America as in effect from time to time;
provided that, for purposes of determining compliance with the
provisions of subsection 10.1, "GAAP" shall mean generally
accepted accounting principles in the United States of America as
in effect on March 31, 1997.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person incurred for the purpose of
providing credit support, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Company in good
faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b)
any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations
of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the
account of such Person, (e) all liabilities secured by any Lien
on any property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment thereof
and (f) all Indebtedness of the types referred to in clauses (a)
through (e) above which is guaranteed directly or indirectly by
such Person.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the
last Business Day of each March, June, September and December,
(b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, and (c) as
to any Eurodollar Loan having an Interest Period longer than
three months, the day which is three months (or a whole multiple
thereof) after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to
such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower in a Notice of
Borrowing delivered to the Administrative Agent by 10:00 A.M.,
New York City time, not less than three Business Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(2) any Interest Period that would otherwise
extend beyond the Termination Date or beyond the date final
payment is due on the Domestic Term Loans or the UK Term Loans
shall end on the Termination Date or such date of final payment,
as the case may be;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end
on the last Business Day of a calendar month; and
(4) the Borrowers shall select Interest Periods so
as not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan": a Domestic Term Loan, a UK Term Loan or a
Revolving Credit Loan, as the context shall require;
collectively, the "Loans".
"Loan Documents": this Agreement and the Notes.
"Majority Lenders": at any time (a) prior to the
Closing Date, Lenders then having Commitments which aggregate
more than 50% of the aggregate amount of the Domestic Term Loan
Commitments, UK Term Loan Commitments and Revolving Credit
Commitments then outstanding and (b) after the Closing Date,
Lenders then having Domestic Term Loans, UK Term Loans and
Revolving Credit Commitments (or, if the Revolving Credit
Commitments have terminated, Revolving Credit Loans) which
aggregate more than 50% of the sum of the Domestic Term Loans
then outstanding, the UK Term Loans then outstanding and the
Revolving Credit Commitments (or the Revolving Credit Loans then
outstanding, as the case may be) then in effect.
"Material Adverse Effect": a material adverse effect
on (a) the business, operations, property, condition (financial
or otherwise) or prospects of the Company and its Subsidiaries
taken as a whole, (b) the validity or enforceability of this or
any of the other Loan Documents or (c) the rights or remedies of
the Administrative Agent or the Lenders hereunder or under any of
the other Loan Documents.
"Material Environmental Amount": an amount payable by
the Company and/or its Subsidiaries in excess of $10,000,000 for
remedial costs, non-routine compliance costs, compensatory
damages, punitive damages, fines, penalties or any combination
thereof.
"Material Subsidiary": each Domestic Subsidiary of the
Company which has either (a) assets having a fair market value
(as reasonably estimated by the Company) or book value in excess
of $10,000,000 in the aggregate or (b) revenues in excess of
$10,000,000 per annum, other than (x) Reebok Securities Holdings
Corp., during such time as its only material asset is Capital
Stock of RBK Holdings plc, (y) Avintco, Inc., during the period
prior to the first anniversary of the Closing Date and (z) Reebok
Foundation, Inc.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection
5.13(a).
"Notes": the collective reference to the Revolving
Credit Notes, the Domestic Term Notes and the UK Term Notes.
"Notice of Borrowing" means (a) with respect to a
request for a borrowing hereunder, a request in the form of
Exhibit F-1 hereto, (b) with respect to a request for
continuation of a Eurodollar Loan hereunder, a request in the
form of Exhibit F-2 hereto and (c) with respect to a request for
conversion of or to a Eurodollar Loan hereunder, a request in the
form of Exhibit F-3 hereto, in each case delivered by a
Responsible Officer of the Company to the Administrative Agent
hereunder.
"Participant": as defined in subsection 13.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the
Company or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City.
"Properties": as defined in subsection 6.16(a).
"Reference Banks": Citibank, N.A., Credit Suisse First
Boston, BankBoston, N.A., Fleet National Bank and Wachovia Bank
of Georgia, N.A. If any Reference Bank shall for any reason no
longer have a Commitment or any Loans, such Reference Bank shall
thereupon cease to be a Reference Bank and the Administrative
Agent (after consultation with the Company) shall, by notice to
the Company and the Lenders, designate another Lender as a
Reference Bank. Each Reference Bank shall use its best efforts
to furnish quotations of rates to the Administrative Agent as
contemplated hereby.
"Register": as defined in subsection 13.6(d).
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within
the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty day notice period is waived under subsections .13, .14,
.16, .18, .19 or .20 of PBGC Reg. section 2615.
"Required Lenders": at any time (a) prior to the
Closing Date, Lenders then having Commitments which aggregate
more than 66-2/3% of the amount of the Domestic Term Loan
Commitments, the UK Term Loan Commitments and Revolving
Credit Commitments then outstanding and (b) after the Closing
Date, Lenders then having Domestic Term Loans, UK Term Loans and
Revolving Credit Commitments (or, if the Revolving Credit
Commitments have terminated, Revolving Credit Loans) which
aggregate more than 66-2/3% of the sum of the Domestic Term Loans
then outstanding, the UK Term Loans then outstanding and the
Revolving Credit Commitments (or the Revolving Credit Loans then
outstanding, as the case may be) then in effect.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other organizational
or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Responsible Officer": the chief executive officer,
the president, any executive vice president, the chief financial
officer, the treasurer and the Manager of treasury services of
the Company, provided that (a) the Manager of treasury services
shall be a Responsible Officer solely for purposes of signing
Notices of Borrowing for the Company and Reebok-UK and (b) the
Treasury Manager of Reebok-UK shall be a Responsible Officer
solely for purposes of signing Notices of Borrowing for Reebok-
UK.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Company hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule II; as to all Lenders, collectively,
the "Revolving Credit Commitments".
"Revolving Credit Loans": as defined in subsection
3.1.
"Revolving Credit Note": as defined in subsection
5.1(f).
"S&P": Standard and Poor's Rating Group.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation,
partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person; provided that (during such time as common stock of the
Company constitutes its only material asset) RBK Holdings plc
shall be deemed not to constitute a Subsidiary of the Company for
any purpose hereunder, other than for purposes of (a) calculation
of financial covenants and (b) presentation of financial
statements. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
"Termination Date": August 31, 2002.
"Tranche": the collective reference to Eurodollar
Loans under the same Commitments having then current Interest
Periods which began on the same date and end on the same later
date (whether or not such Loans shall originally have been made
on the same day).
"Transferee": as defined in subsection 13.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"UK Borrower": as defined in the preamble hereto.
"UK Obligations": the unpaid principal of, and
interest on (including post-petition interest), the UK Term Loans
and all other obligations and liabilities of Reebok-UK to the
Administrative Agent and the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in
connection with, this Agreement (including, without limitation,
any amendment and restatement or refinancing hereof) or any
other document executed and delivered in connection therewith or
herewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or any Lender) or otherwise.
"UK Term Loan": as defined in subsection 4.1.
"UK Term Loan Commitment": as to any Lender, the
obligation of such Lender to make a UK Term Loan to Reebok-UK
hereunder in an aggregate principal amount not to exceed the
amount set forth opposite such Lender's name on Schedule II; as
to all Lenders collectively, the "UK Term Loan Commitments".
"UK Term Note": as defined in subsection 5.1(f).
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Company and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement
shall be counted in calendar days unless Business Days are
expressly prescribed. Any period determined hereunder by
reference to a month or months or year or years shall end on the
day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically
corresponding to the first day of such period, provided, that if
such period commences on the last day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other
provisions of this Agreement, end on the last day of the calendar
month.
(e) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
SECTION 2. AMOUNT AND TERMS OF DOMESTIC TERM LOAN
COMMITMENTS
2.1 Domestic Term Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make a term
loan (a "Domestic Term Loan") to the Company on any one Business
Day to occur within ten Business Days following the date hereof
in an amount not to exceed the amount of the Domestic Term Loan
Commitment of such Lender then in effect. The Domestic Term
Loans may from time to time be (a) Eurodollar Loans, (b) ABR
Loans or (c) a combination thereof, as determined by the Company
and notified to the Administrative Agent in accordance with
subsections 2.2 and 5.5.
2.2 Procedure for Domestic Term Loan Borrowing. The
Company shall give the Administrative Agent its irrevocable
Notice of Borrowing (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (x)
three Business Days prior to the Closing Date, if all or any part
of the requested Domestic Term Loans are to be initially
Eurodollar Loans or (y) one Business Day prior to the Closing
Date, otherwise) requesting that the Lenders make the Domestic
Term Loans on the Closing Date and specifying the amount to be
borrowed. Upon receipt of such Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of the
Domestic Term Loans available to the Administrative Agent for the
account of the Company at the office of the Administrative Agent
specified in subsection 13.2 prior to 11:00 A.M., New York City
time, on the Closing Date in funds immediately available to the
Administrative Agent. Such Domestic Term Loans will then be
made available to the Company by the Administrative Agent
transferring to the account directed by the Company (which
account need not be maintained by the Administrative Agent) with
the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3 Amortization of Domestic Term Loans. (a) The
Company shall repay the Domestic Term Loans on each date set
forth below (or, if such date is not a Business Day, on the
immediately preceding Business Day) by the amount set forth below
opposite such date:
Period Amount
September 30, 1997 8,148,148.15
December 31, 1997 12,222,222.22
March 31, 1998 8,148,148.15
June 30, 1998 12,222,222.22
September 30, 1998 16,296,296.30
December 31, 1998 20,370,370.37
March 31, 1999 8,148,148.15
June 30, 1999 16,296,296.30
September 30, 1999 20,370,370.37
December 31, 1999 24,444,444.44
March 31, 2000 8,148,148.15
June 30, 2000 16,296,296.30
September 30, 2000 20,370,370.37
December 31, 2000 24,444,444.44
March 31, 2001 8,148,148.15
June 30, 2001 16,296,296.30
September 30, 2001 28,518,518.52
December 31, 2001 36,666,666.67
March 31, 2002 8,148,148.15
June 30, 20022 4,444,444.44
(b) The Company shall repay any then-outstanding
Domestic Term Loans on the Termination Date.
2.4 Use of Proceeds of Domestic Term Loans. The
proceeds of the Domestic Term Loans shall be utilized by the
Company only to refinance certain outstanding Indebtedness of the
Company and its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
3.1 Revolving Credit Commitments. (a) Subject to
the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans ("Revolving Credit Loans") to the
Company from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding which does
not exceed the amount of such Lender's Revolving Credit
Commitment. During the Commitment Period the Company may use the
Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time
be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination
thereof, as determined by the Company and notified to the
Administrative Agent in accordance with subsections 3.2 and 5.5,
provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the
Termination Date.
3.2 Procedure for Revolving Credit Borrowing. The
Company may borrow under the Revolving Credit Commitments during
the Commitment Period on any Business Day, provided that the
Company shall deliver to the Administrative Agent the Company's
irrevocable Notice of Borrowing prior to 10:00 A.M., New York
City time, (a) three Business Days prior to the requested
borrowing date, if all or any part of the requested Revolving
Credit Loans are to be initially Eurodollar Loans or (b) one
Business Day prior to the requested borrowing date, otherwise.
Each borrowing under the Revolving Credit Commitments shall be in
an amount equal to (x) in the case of ABR Loans, $10,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then
Available Commitments are less than $10,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $10,000,000 or a
whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such Notice of Borrowing from the Company, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the
Company at the office of the Administrative Agent specified in
subsection 13.2 prior to 11:00 A.M., New York City time, on the
borrowing date requested by the Company in funds immediately
available to the Administrative Agent. Such borrowing will then
be made available to the Company by the Administrative Agent
transferring to the account directed by the Company (which
account need not be maintained by the Administrative Agent) with
the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the
Administrative Agent.
3.3 Use of Proceeds of Revolving Credit Loans. The
proceeds of the Revolving Credit Loans shall be utilized by the
Company only (a) to refinance certain outstanding Indebtedness of
the Company and its Subsidiaries and (b) for other general
corporate purposes of the Company and its Subsidiaries in the
ordinary course of business.
SECTION 4. AMOUNT AND TERMS OF UK TERM LOAN FACILITY
4.1 UK Term Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make a term
loan (a "UK Term Loan") to Reebok-UK on the Closing Date in an
amount not to exceed the amount of the UK Term Loan Commitment of
such Lender then in effect. The UK Term Loans may from time to
time be (a) Eurodollar Loans, (b) ABR Loans or (c) a combination
thereof, as determined by Reebok-UK and notified to the
Administrative Agent in accordance with subsections 4.2 and 5.5.
4.2 Procedure for UK Term Loan Borrowing. Reebok-UK
shall give the Administrative Agent its irrevocable Notice of
Borrowing (which notice must be received by the Administrative
Agent prior to 10:00 A.M., New York City time, three Business
Days prior to the Closing Date). Upon receipt of such Notice of
Borrowing, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata
share of the UK Term Loans available to the Administrative Agent
for the account of Reebok-UK at the office of the Administrative
Agent specified in subsection 13.2 prior to 11:00 A.M., New York
City time, on the Closing Date in funds immediately available to
the Administrative Agent. The UK Term Loans will then be made
available to Reebok-UK by the Administrative Agent transferring
to the account directed by Reebok-UK (which account need not be
maintained by the Administrative Agent) with the aggregate of the
amounts made available to the Administrative Agent by the Lenders
and in like funds as received by the Administrative Agent.
4.3 Amortization of UK Term Loans. (a) Reebok-UK
shall repay the UK Term Loans on each date set forth below (or,
if such date is not a Business Day, on the immediately preceding
Business Day) by the amount set forth below opposite such date:
Period Amount
September 30, 1997 1,851,851.85
December 31, 1997 2,777,777.78
March 31, 1998 1,851,851.85
June 30, 1998 2,777,777.78
September 30, 1998 3,703,703.70
December 31, 1998 4,629,629.63
March 31, 1999 1,851,851.85
June 30, 1999 3,703,703.70
September 30, 1999 4,629,629.63
December 31, 1999 5,555,555.56
March 31, 2000 1,851,851.85
June 30, 2000 3,703,703.70
September 30, 2000 4,629,629.63
December 31, 2000 5,555,555.56
March 31, 2001 1,851,851.85
June 30, 2001 3,703,703.70
September 30, 2001 6,481,481.48
December 31, 2001 8,333,333.33
March 31, 2002 1,851,851.85
June 30, 2002 5,555,555.56
(b) Reebok-UK shall repay any then-outstanding UK Term
Loans on the Termination Date.
4.4 Use of Proceeds of UK Term Loans. The proceeds of
the UK Term Loans shall be utilized by Reebok-UK (a) to refinance
certain outstanding Indebtedness of Reebok-UK and (b) for other
general corporate purposes of Reebok-UK.
SECTION 5, PROVISIONS RELATING TO THE EXTENSIONS OF
CREDIT; FEES AND PAYMENTS
5.1 Repayment of Loans; Evidence of Debt. (a) The
Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each applicable Lender
(i) the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Termination Date (or such earlier date
on which the Revolving Credit Loans become due and payable
pursuant to Section 11) and (ii) the principal amount of the
Domestic Term Loans on the dates and in the amounts set forth in
subsection 2.3 (or the then unpaid principal amount of such
Domestic Term Loans, on the date that the Domestic Term Loans
become due and payable pursuant to Section 11. The Company
hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 5.7.
(b) Reebok-UK hereby unconditionally promises to pay
to the Administrative Agent, for the account of each applicable
Lender, the principal amount of the UK Term Loans on the dates
and in the amounts set forth in subsection 4.3 (or the then
unpaid principal amount of the UK Term Loans, on the date that
the UK Term Loans become due and payable pursuant to Section 11).
Reebok-UK hereby further agrees to pay interest on the unpaid
principal amount of the UK Term Loans from time to time
outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection
5.7. Notwithstanding anything to the contrary contained herein,
in no event shall Reebok-UK have any liability to the
Administrative Agent or any Lender for liabilities hereunder on
account of which the Company is the primary obligor.
(c) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrowers to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under
this Agreement.
(d) The Administrative Agent shall maintain the
Register pursuant to subsection 13.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of
each Revolving Credit Loan, Domestic Term Loan and UK Term Loan
made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from either
Borrower and each Lender's share thereof.
(e) The entries made in the Register and the accounts
of each Lender maintained pursuant to subsection 5.1(c) shall, to
the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of each Borrower
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of each Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(f) The Borrowers agree that, upon request of any
Lender through the Administrative Agent, the Company or Reebok-UK
(as the case may be) will execute and deliver to such Lender (i)
a promissory note of the Company evidencing the Domestic Term
Loan of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (a
"Domestic Term Note"), (ii) a promissory note of the Company
evidencing the Revolving Credit Loans of such Lender,
substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (a "Revolving Credit
Note") and/or (iii) a promissory note of Reebok-UK evidencing the
UK Term Loan of such Lender, substantially in the form of Exhibit
C with appropriate insertions as to date and principal amount (a
"UK Term Note"), to the extent necessary (in each such case) to
permit such Lender to assign any such Loan to a Federal Reserve
Bank.
5.2 Commitment Fee. The Company agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee for each day during the period from and including the first
day of the Commitment Period to the Termination Date, computed at
the rate per annum equal to the Applicable Commitment Fee Rate in
effect on such date times the Available Commitment of such Lender
on such day. Such commitment fee shall be payable quarterly, in
arrears, on the last Business Day of each March, June, September
and December and on the Termination Date or such earlier date as
the Revolving Credit Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the
date hereof.
5.3 Optional Prepayments. Each Borrower may at any
time and from time to time prepay the Loans owing by it, in whole
or in part, without premium or penalty, upon at least three
Business Days' (or, in the case of prepayments of ABR Loans, one
Business Day's) irrevocable notice to the Administrative Agent
(which notice must be received by the Administrative Agent prior
to 10:00 A.M., New York City time, on the date upon which such
notice is due), specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each affected Lender
thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to subsection
5.14 and, except in the case of prepayments of Revolving Credit
Loans which are ABR Loans, accrued interest to such date on the
amount prepaid. Partial prepayments of the Domestic Term Loans
and the UK Term Loans shall be applied to the remaining
installments thereof, at the option of the Company, either (a)
ratably or (b) in inverse order of the maturity. Amounts prepaid
on account of the Domestic Term Loans and the UK Term Loans may
not be reborrowed. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $1,000,000
in excess thereof.
5.4 Optional Termination or Reduction of Revolving
Credit Commitments. The Company shall have the right, upon not
less than five Business Days' notice to the Administrative Agent,
to terminate the Revolving Credit Commitments or, from time to
time, to reduce the amount of the Revolving Credit Commitments;
provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof, the
aggregate principal amount of the Revolving Credit Loans then
outstanding would exceed the Revolving Credit Commitments then in
effect. Any such reduction shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall reduce permanently the Revolving Credit Commitments
then in effect.
5.5 Conversion and Continuation Options. (a) Each
Borrower may elect from time to time to convert Eurodollar Loans
to ABR Loans by delivering to the Administrative Agent an
irrevocable Notice of Borrowing by 10:00 A.M., New York City
time, at least one Business Day prior to the requested date of
conversion. Each Borrower may elect from time to time to convert
ABR Loans to Eurodollar Loans by delivering to the Administrative
Agent an irrevocable Notice of Borrowing by 10:00 A.M., New York
City time, at least three Business Days' prior to the requested
conversion date. Any such Notice of Borrowing with respect to a
conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon
receipt of any such Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no Loan may be converted into
a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required
Lenders have determined that such a conversion is not appropriate
and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Termination Date (in the
case of conversions of Revolving Credit Loans) or the date of the
final installment of principal of the Domestic Term Loans or UK
Term Loans (as the case may be).
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect
thereto by the relevant Borrower delivering to the Administrative
Agent an irrevocable Notice of Borrowing, in accordance with the
applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan
may be continued as such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined that such a continuation is
not appropriate or (ii) after the date that is one month prior to
the Termination Date (in the case of continuations of Revolving
Credit Loans) or the date of the final installment of principal
of the Domestic Term Loans or the UK Term Loans (as the case may
be) and provided, further, that if a Borrower shall fail to give
such notice or if such continuation is not permitted such Loans
shall be automatically converted to ABR Loans on the last day of
such then expiring Interest Period. Upon receipt of any such
Notice of Borrowing, the Administrative Agent shall promptly
notify each Lender thereof.
5.6 Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall
be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Tranche shall be equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
In no event shall there be more than 15 Tranches of Eurodollar
Loans outstanding at any time.
5.7 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the then
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per
annum equal to the ABR plus the then Applicable Margin.
(c) If all or a portion of (i) any principal of any
Loan, (ii) any interest payable thereon, (iii) any commitment fee
or (iv) any other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or
otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a
rate per annum which is (x) in the case of principal, the rate
that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the
case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection
plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, commitment fee or other amount
is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant
to paragraph (c) of this subsection shall be payable from time to
time on demand.
(e) Notwithstanding anything to the contrary contained
herein, in no event shall a Borrower be obligated to pay interest
in excess of the maximum amount which is chargeable under
applicable law.
5.8 Computation of Interest and Fees. (a) Commitment
fees and, whenever it is calculated on the basis of the Prime
Rate, interest shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the
relevant Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business
on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the
relevant Borrower and the Lenders of the effective date and the
amount of each such change in interest rate. Any change in the
Applicable Margin or Applicable Commitment Fee Rate resulting
from a change in the credit rating of the Company shall become
effective on the earlier of (x) the date upon which such change
is publicly announced by the relevant rating agency and (y) the
date upon which the Company provides to the Administrative Agent
reasonably satisfactory evidence of such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Lenders
in the absence of manifest error. The Administrative Agent
shall, at the request of either Borrower, deliver to such
Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to
subsection 5.7(a).
5.9 Inability to Determine Interest Rate. If prior to
the first day of any Interest Period:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received
notice from the Majority Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the affected Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that
were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be converted to or continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to ABR
Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made
or continued as such, nor shall either Borrower have the right to
convert Loans to Eurodollar Loans.
5.10 Pro Rata Treatment and Payments. (a) Each
borrowing by a Borrower from the Lenders hereunder, each payment
by a Borrower on account of any commitment fee hereunder and any
reduction of the Commitments of the Lenders shall be made pro
rata according to the respective Commitment Percentages of the
Lenders holding obligations in respect of which such amounts were
paid. Each payment (including each prepayment) by a Borrower on
account of principal of and interest on the Loans shall be made
pro rata according to the respective outstanding principal
amounts of such Loans then held by the Lenders. Except as
otherwise set forth herein, all payments (including prepayments)
to be made by a Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set
off or counterclaim and shall be made prior to 12:00 Noon, New
York City time, on the due date thereof to the Administrative
Agent, for the account of the applicable Lenders, at the
Administrative Agent's office specified in subsection 13.2, in
Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders holding
obligations on account of which such amounts were paid promptly
upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its
relevant Commitment Percentage of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower a
corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the borrowing
date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to
the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under
this subsection 5.10 shall be conclusive in the absence of
manifest error. If such Lender's relevant Commitment Percentage
of such borrowing is not made available to the Administrative
Agent by such Lender within three Business Days of such borrowing
date, the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum
applicable to ABR Loans hereunder, on demand, from the applicable
Borrower.
5.11 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period
as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the applicable Borrower
shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 5.14.
5.12 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any
Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 5.13 and changes in the
rate of net income taxes or franchise taxes (imposed in lieu of
net income taxes) of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by,
or any other acquisition of funds by, any office of such Lender
which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar
Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower with respect to
such Eurodollar Loans shall promptly pay (or cause to be paid to)
such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy
(whether or not having the force of law, if compliance therewith
is a customary banking practice) from any Governmental Authority
made subsequent to the date hereof shall have the effect of
reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to
time, the Company (on its own behalf or on behalf of Reebok-UK)
shall promptly pay (or cause to be paid) to such Lender such
additional amount or amounts as will compensate such Lender for
such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection 5.12, it shall promptly
notify the Company, the Administrative Agent and (in the case of
a claim under subsection 5.12(a) only with respect to Eurodollar
Loans owing by Reebok-UK) Reebok-UK of the event by reason of
which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection 5.12
submitted by such Lender to the Borrower owing such amounts (with
a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. The agreements in this subsection
5.12 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
5.13 Taxes. (a) All payments made by the Borrowers
under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on
the Administrative Agent or any Lender as a result of a present
or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection
arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrowers shall not be
required to increase any such amounts payable to any Lender that
is not organized under the laws of the United States of America
or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower shall send to the
Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when
due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection 5.13 shall survive
the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof shall:
(i) deliver to the Company and the Administrative
Agent (A) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, and (B) an Internal Revenue Service Form W-8
or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Company and the
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Company or the Administrative Agent;
unless in any such case an event (including, without limitation,
any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Company and the
Administrative Agent. Such Lender shall certify (i) in the case
of a Form 1001 or 4224, that it is entitled to receive payments
under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a
Lender or a Participant pursuant to subsection 13.6 shall, upon
the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this
subsection 5.13, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements
to the Lender from which the related participation shall have
been purchased.
(c) If any Lender shall receive a credit or refund
from a taxing authority with respect to, and actually resulting
from, an amount of Non-Excluded Taxes actually paid to or on
behalf of such Lender by a Borrower (a "Tax Credit"), such Lender
shall promptly notify such Borrower of such Tax Credit. If such
Tax Credit is received by such Lender in the form of cash, such
Lender shall promptly pay to such Borrower the amount so received
with respect to the Tax Credit. If such Tax Credit is not
received by such Lender in the form of cash, such Lender shall
pay the amount of such Tax Credit not later than the time
prescribed by applicable Law for filing the return (including
extensions of time) for such Lender's taxable period which
includes the period in which such Lender receives the economic
benefit of such Tax Credit. In any event, the amount of any Tax
Credit payable by a Lender to a Borrower pursuant to this clause
(c) shall not exceed the actual amount of cash refunded to, or
credits received and usable (in accordance with the actual
practices then in use by such Lender) by, such Lender from a
taxing authority. In determining the amount of any Tax Credit, a
Lender may use such apportionment and attribution rules as such
Lender customarily employs in allocating taxes among its various
operations and income sources and such determination shall be
conclusive absent manifest error. Each Borrower further agrees
promptly to return to a Lender the amount paid to such Borrower
with respect to a Tax Credit by such Lender if such Lender is
required to repay, or is determined to be ineligible for, a Tax
Credit for such amount. Notwithstanding anything to the contrary
contained herein, each Borrower hereby acknowledges and agrees
that (i) neither the Administrative Agent nor any Lender shall be
obligated to provide such Borrower with details of the tax
position of the Administrative Agent or such Lender (as the case
may be) and (ii) such Borrower shall have no right to inspect any
records (including tax returns) of the Administrative Agent or
such Lender (as the case may be).
5.14 Indemnity. Each Borrower agrees to indemnify
each Lender and to hold each Lender harmless from any loss or
expense which such Lender may sustain or incur as a consequence
of (a) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after such
Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by such
Borrower in making any prepayment after such Borrower has given a
notice thereof in accordance with the provisions of this
Agreement or (c) the making by such Borrower of a prepayment of
Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount
of interest which would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case
of a failure to borrow, convert or continue, the Interest Period
that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts
payable hereunder.
5.15 Change of Lending Office. Each Lender agrees
that if it makes any demand for payment under subsection 5.12 or
5.13(a), or if any adoption or change of the type described in
subsection 5.11 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not
be disadvantageous to it, as determined in its good faith
discretion) to designate a different lending office if the making
of such a designation would reduce or obviate the need for a
Borrower to make payments under subsection 5.12 or 5.13(a), or
would eliminate or reduce the effect of any adoption or change
described in subsection 5.11.
5.16 Additional Action in Certain Events. (a) In the
event that any event or condition described in Section 5.11, 5.12
or 5.13(a) has occurred and is continuing that increases the cost
to a Borrower of the Loans by any Lender, the Company may (after
paying any accrued amounts required to be paid pursuant to
Section 5.11, 5.12 or 5.13(a) hereof, as the case may be, for the
period prior to the taking of such action) require any Lender so
affected by such event or condition to transfer or assign, in
whole (but not in part), without recourse, its Commitments and
Loans hereunder in accordance with the provisions of subsection
13.6(c) to one or more Assignees (which need not be existing
Lenders hereunder, but which may not request payment from such
Borrower of any such amounts on account of the same event or
condition which affects the assigning Lender) identified to it by
the Company.
(b) In the event that any Lender shall fail to execute
and deliver any amendment, supplement or modification hereto
requested by the Company, the Company may (within 30 days
following the requested response date for such amendment,
supplement or modification) require such Lender to transfer or
assign, in whole (but not in part), without recourse, its
Commitments and Loans hereunder in accordance with the provisions
of subsection 13.6(c) to one or more Assignees (which need not be
existing Lenders hereunder, but which must be willing to execute
and deliver such amendment, supplement or modification)
identified to it by the Company.
(c) Notwithstanding the foregoing provisions of this
subsection 5.16, no Lender shall be required to assign all or any
portion of its Commitments and Loans pursuant to this Section
5.16 unless and until such Lender shall have received from such
Assignees one or more payments which, in an aggregate, are at
least equal to the aggregate outstanding principal amount of the
Loans owing to such Lender and all accrued interest and other
amounts owing on account thereof. Any assignment made pursuant
to this subsection 5.16 shall constitute a prepayment for
purposes of, and shall be subject to the provisions of,
subsection 5.14.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and
to make the Loans, each of the Company and (to the extent that
such representation and warranty pertains to matters applicable
to Reebok-UK or any of its Subsidiaries) Reebok-UK hereby
represents and warrants to the Administrative Agent and each
Lender that:
6.1 Financial Condition. (a) The consolidated balance
sheet of the Company and its consolidated Subsidiaries as at
December 31, 1996 and the related consolidated statements of
income and of cash flows for the fiscal year ended on such date,
reported on by Ernst & Young, copies of which have heretofore
been furnished to each Lender, are complete and correct and
present fairly in all material respects the consolidated
financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal
year then ended. The unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at March 31, 1997
and the related unaudited consolidated statements of income and
of cash flows for the three-month period ended on such date,
certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and
correct and present fairly in all material respects the
consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for
the three-month period then ended (subject to normal year-end
audit adjustments and the absence of footnotes).
(b) All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible
Officer, as the case may be, and as disclosed therein). Neither
Borrower nor any of its consolidated Subsidiaries had, at the
date of the most recent balance sheet referred to above with
respect to such Borrower, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. Except to the extent
permitted under this Agreement or separately disclosed to the
Lenders in writing prior to the date hereof, there has been no
sale, transfer or other disposition by either Borrower or any of
its consolidated Subsidiaries of any material part of its
business or property and no purchase or other acquisition of any
business or property (including any Capital Stock of any other
Person) material in relation to the consolidated financial
condition of such Borrower and its consolidated Subsidiaries at
December 31, 1996 during the period from December 31, 1996
to and including the date hereof.
6.2 No Change. Since December 31, 1996, there has
been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
6.3 Disclosure. No information, schedule, exhibit or
report or other document furnished by such Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other
Loan Document (or pursuant to the terms hereof or thereof), as
such information, schedule, exhibit or report or other document
has been amended, supplemented or superseded by any other
information, schedule, exhibit or report or other document later
delivered to the same parties receiving such information,
schedule, exhibit or report or other document, contained any
material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein,
in light of the circumstances when made, not materially
misleading.
6.4 Corporate Existence; Compliance with Law. Each of
such Borrower and its Subsidiaries (a) is duly organized, validly
existing and (in the case of the Company and its Material
Subsidiaries) in good standing under the laws of the jurisdiction
of its organization, (b) has the corporate power and authority,
and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in
which it is currently engaged, (c) in the case of the Company and
its Material Subsidiaries, is duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification,
except to the extent that all failures to be so qualified could
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that all failures to comply therewith
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.5 Corporate Power; Authorization; Enforceable
Obligations. Such Borrower has the corporate power and
authority, and the legal right, to make, deliver and perform the
Loan Documents to which it is a party and to borrow hereunder and
has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any
Notes and to authorize the execution, delivery and performance of
the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of
the Loan Documents to which such Borrower is a party. This
Agreement has been, and each other Loan Document to which it is a
party will be, duly executed and delivered on behalf of such
Borrower. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will
constitute, a legal, valid and binding obligation of such
Borrower enforceable against such Borrower in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
6.6 No Legal Bar. The execution, delivery and
performance of the Loan Documents to which such Borrower is a
party, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual
Obligation of such Borrower or of any of its Subsidiaries and
will not result in, or require, the creation or imposition of any
Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual
Obligation.
6.7 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of such
Borrower, threatened by or against such Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any
of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
6.8 No Default. Neither Borrower nor any of its
respective Subsidiaries is in default under or with respect to
any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
6.9 Ownership of Property; Liens. Each of the
Company, each of its Material Subsidiaries and Reebok-UK has good
record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to,
or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted
by subsection 9.2.
6.10 Intellectual Property. Each Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted,
except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is
pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of
any such Intellectual Property which, if accurate, could
reasonably be expected to have a Material Adverse Effect, nor
does either Borrower know of any valid basis for any such claim.
To the best knowledge of each Borrower, the use of such
Intellectual Property by such Borrower and its Subsidiaries does
not infringe on the rights of any Person, except for such claims
and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.11 Taxes. Each of the Company, each of its Material
Subsidiaries and Reebok-UK has filed or caused to be filed all
tax returns which, to the knowledge of the Company or Reebok-UK,
are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it
or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its
Subsidiaries, as the case may be); no tax Lien has been filed,
and, to the knowledge of each Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.
6.12 Federal Regulations. No part of the proceeds of
any Loans will be used in any manner which would violate, or
result in the violation of, Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect. If requested by any Lender or
the Administrative Agent, each Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR
Form U-1 referred to in said Regulation G or Regulation U, as the
case may be.
6.13 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section
412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation
is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a
Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits.
Neither the Company nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and
neither the Company nor any Commonly Controlled Entity would
become subject to any liability under ERISA if the Company or any
such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed
made. No such Multiemployer Plan is in Reorganization or
Insolvent. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the
Company and each Commonly Controlled Entity for post retirement
benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits by an
amount in excess of $10,000,000.
6.14 Investment Company Act; Other Regulations.
Neither Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
Neither Borrower is subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the
Board of Governors of the Federal Reserve System) which limits
its ability to incur Indebtedness.
6.15 Subsidiaries. Schedule III hereto sets forth all
of the Subsidiaries of the Company at the date hereof.
6.16 Environmental Matters. (a) The facilities and
properties owned, leased or operated by the Company, any of its
Material Subsidiaries or any of its first-tier Foreign
Subsidiaries (the "Properties") do not contain, and have not
previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute or constituted a
violation of, or (ii) could reasonably be expected to give rise
to liability under, any Environmental Law, except in either case
insofar as such violation or liability, or any aggregation
thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
(b) The Properties and all operations at the
Properties are in compliance, and have in the last 3 years been
in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at or under
(or, to the knowledge of either Borrower, about) the Properties
or violation of any Environmental Law with respect to the
Properties or the business operated by the Company, any of its
Material Subsidiaries or any of its first-tier Foreign
Subsidiaries (the "Business"), except insofar as such violation
or failure to be in compliance or contamination, or any
aggregation thereof, is not reasonably likely to result in the
payment of a Material Environmental Amount.
(c) Neither Borrower nor any of its respective
Subsidiaries has received any notice of violation, alleged
violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business, nor
does either Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened, except
insofar as such notice or threatened notice, or any aggregation
thereof, does not involve a matter or matters that is or
are reasonably likely to result in the payment of a Material
Environmental Amount.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of,
or in a manner or to a location which could reasonably be
expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably
be expected to give rise to liability under, any applicable
Environmental Law, except insofar as any such violation or
liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of either
Borrower, threatened, under any Environmental Law to which the
Company, any of its Material Subsidiaries or any of its
first-tier Foreign Subsidiaries is or will be named as a party
with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect
to the Properties or the Business, except insofar as such
proceeding, action, decree, order or other requirement, or any
aggregation thereof, is not reasonably likely to result in
the payment of a Material Environmental Amount.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of either Borrower or
any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in
a manner that could reasonably give rise to liability under
Environmental Laws, except insofar as any such violation or
liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Initial Extensions of Credit. The
agreement of each Lender to make the initial extension of credit
requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall
have received this Agreement, executed and delivered by a duly
authorized officer of each Borrower.
(b) Other Agreements. The Administrative Agent shall
have received true and correct copies, certified as to
authenticity by the Company, of such other documents or
instruments as may be reasonably requested by the Administrative
Agent.
(c) Closing Certificates of Borrowers. The
Administrative Agent shall have received a certificate of the
President or any Vice President and the Secretary or an Assistant
Secretary of each Borrower, dated the Closing Date, (i) attaching
the Charter and By-laws (or analogous documents) of such
Borrower, (ii) attaching the resolutions of the Board of
Directors of such Borrower with respect to the transactions
contemplated hereby, (iii) certifying that the such resolutions
have not been amended, modified, revoked or rescinded as of the
date of such certificate and (iv) certifying as to the incumbency
and signature of the officers of such Borrower executing any Loan
Document; each such certificate (and the attachments thereto)
shall be in form and substance satisfactory to the Administrative
Agent.
(d) Fees. The Administrative Agent shall have
received, for the accounts of the Lenders and the Administrative
Agent, all accrued fees and expenses owing hereunder or in
connection herewith to the Administrative Agent and the Lenders
(including, without limitation, accrued fees and disbursements of
primary counsel to the Administrative Agent), to the extent that
such fees and expenses have been presented for payment a
reasonable time prior to the Closing Date.
(e) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, the following
executed legal opinions:
(i) the executed legal opinion of Ropes & Gray,
Massachusetts counsel to the Company, substantially in the form
of Exhibit D-1;
(ii) the executed legal opinion of Barry Nagler, Esq.,
General Counsel of the Company, substantially in the form of
Exhibit D-2;
(iii) the executed legal opinion of MacFarlanes,
special United Kingdom counsel to Reebok-UK, substantially in the
form of Exhibit D-3;
and
(iv) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Administrative Agent, substantially in
the form of Exhibit D-4.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as
the Administrative Agent may reasonably require.
7.2 Conditions to Each Extension of Credit. The
agreement of each Lender to make any extension of credit
requested to be made by it on any date (including, without
limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by either Borrower in or
pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of
such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the extensions of credit requested to be made
on such date.
Each borrowing by a Borrower hereunder shall constitute a
representation and warranty by the Borrowers as of the date
thereof that the conditions contained in this subsection 7.2 have
been satisfied.
SECTION 8. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Company shall and (except in the case of delivery
of financial information, reports and notices) shall cause each
of its Subsidiaries to:
8.1 Financial Statements. Furnish to each Lender and
the Administrative Agent:
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Company, a copy of
the consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year and the
related consolidated statements of income and retained earnings
and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst
& Young or other independent certified public accountants of
nationally recognized standing;
and
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three quarterly
periods of each fiscal year of the Company, the unaudited
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained
earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case
in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
8.2 Certificates; Other Information. Furnish to each
Lender and the Administrative Agent:
(a) concurrently with the delivery of the financial
statements referred to in subsection 8.1(a), a certificate of the
independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and (b), a
certificate of a Responsible Officer (i) stating that, to the
best knowledge of such Responsible Officer, each Borrower has
observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement and
the other Loan Documents to be observed, performed or satisfied
by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such
certificate and (ii) setting forth the computations used by the
Company in determining (as of the end of such fiscal period)
compliance with the covenants contained in subsection 9.1;
(c) within five days after the same are sent, copies
of all financial statements and reports which the Company sends
to its stockholders, and within five days after the same are
filed, copies of all financial statements and reports which the
Company may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
and
(d) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
8.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity in accordance with
customary terms or before they become delinquent, as the case may
be, all of its material obligations of whatever nature, except
where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
8.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or (in
the reasonable judgment of the Company) desirable in the normal
conduct of its business except as otherwise permitted pursuant to
subsection 9.3; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to
have a Material Adverse Effect.
8.5 Maintenance of Property; Insurance; Trademark
License. (a) Keep all property useful and necessary in its
business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on
all its material property in at least such amounts and against at
least such risks as are usually insured against in the same
general area by companies engaged in the same or a similar
business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
(b) Keep in full force and effect, and comply in all
material respects with the terms of, a license agreement between
the Company and any wholly-owned Subsidiary of the Company or of
Reebok-UK which is substantially similar in form and substance to
the License Agreement, dated as of August 6, 1979, between the
Company (as successor to Reebok U.S.A. Limited, Inc.) and
Reebok-UK, as the same may be amended, supplemented or otherwise
modified in a manner which could not reasonably be expected to
have a Material Adverse Effect.
8.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect
any of its properties and examine and make abstracts from any of
its books and records at any reasonable time (upon reasonable
advance notice, when no Default or Event of Default has occurred
and is continuing) and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and
other condition of the Company and its Subsidiaries with officers
and employees of the Company and its Subsidiaries and with its
independent certified public accountants.
8.7 Notices. Promptly give notice to the
Administrative Agent (which shall give prompt notice thereof to
the Lenders) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Company or any of its Subsidiaries
or (ii) litigation, investigation or proceeding which may
exist at any time between the Company or any of its Subsidiaries
and any Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company
or any of its Subsidiaries in which the amount involved is
$10,000,000 or more and not covered by insurance or in which
injunctive or similar relief is sought which could have a
Material Adverse Effect;
(d) the following events, as soon as possible and in
any event within 30 days after the Company knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Company or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan;
(e) any change in the Credit Rating of the Company
promptly upon the effectiveness thereof; and
(f) the occurrence of (i) any material adverse change
in the business, operations, property, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken
as a whole or (ii) any development or event which could
reasonably be expected to have a material adverse effect on the
rights or remedies of the Administrative Agent or the Lenders
hereunder or under any of the other Loan Documents.
Each notice pursuant to this subsection 8.7 shall be accompanied
by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the
Company proposes to take with respect thereto.
8.8 Environmental Laws. (a) Comply with, and use
reasonable efforts to ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and use reasonable
efforts to ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so
could not be reasonably expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except to
the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings
could not be reasonably expected to have a Material Adverse
Effect.
SECTION 9. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Company shall not, and (except with respect to
subsection 9.1) shall not permit any of its Subsidiaries to,
directly or indirectly:
9.1 Financial Condition Covenants.
(a) Indebtedness to EBITDA. Permit the ratio of (i)
total Indebtedness of the Company and its Subsidiaries on a
consolidated basis at any date during a period set forth below to
(ii) EBITDA of the Company and its Subsidiaries on a consolidated
basis for the period of four consecutive fiscal quarters most
recently ended prior to such date for which the Company has
delivered the financial statements contemplated by subsection
8.1(a) or (b), as the case may be, to be greater than the ratio
set forth below opposite the "Test Period" during which such date
occurs:
Test Period Ratio
Closing Date - 09/30/97 3.75 to 1.0
10/01/97 - 12/30/97 3.50 to 1.0
12/31/97 - 03/31/98 3.40 to 1.0
04/01/98 - 06/30/98 3.25 to 1.0
07/01/98 - thereafter 3.00 to 1.0
(b) Interest Coverage. Permit, for any period of four
consecutive fiscal quarters most recently ended, the ratio of (i)
EBITDA of the Company and its Subsidiaries on a consolidated
basis for such period to (ii) the amount of interest expense,
both expensed and capitalized, of the Company and its
Subsidiaries, determined on a consolidated basis in accordance
with GAAP, for such period on the aggregate principal amount of
their consolidated Indebtedness, to be less than 3.00 to 1.00.
9.2 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the
books of the Company or its Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of Foreign Subsidiaries,
generally accepted accounting principles in effect from time to
time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period of
more than 90 days or which are being contested in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and which
do not in any case materially detract from the value of the
property subject thereto or materially interfere with the
ordinary conduct of the business of the Company or any
Subsidiary;
(f) Liens in existence on the date hereof listed on
Schedule IV, provided that no such Lien is spread to cover any
additional property after the date hereof and that the amount of
Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Company and its
Subsidiaries incurred to finance or refinance the acquisition of
fixed or capital assets (including, without limitation, the new
headquarters park for the Company), provided that (i) such Liens
shall be created substantially simultaneously with the
acquisition of such fixed or capital assets (or, in the case of
any refinancing, secured the Indebtedness being refinanced) or
within 90 days following such acquisition, (ii) such Liens do not
at any time encumber any property other than the property
originally financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens on assets of any Foreign Subsidiary securing
Indebtedness or Guarantee Obligations of such Foreign Subsidiary;
provided that the aggregate maximum amount of Indebtedness and
Guarantee Obligations which may be secured by Liens incurred in
reliance upon this subsection 9.2(h) shall be $25,000,000 at any
one time outstanding;
(i) Liens securing Indebtedness in the nature of
reimbursement obligations on account of commercial letters of
credit which encumber only the assets acquired or shipped with
the support of such commercial letter of credit;
(j) Liens on the property or assets of a corporation
which becomes a Subsidiary after the date hereof securing
Indebtedness of such Subsidiary which existed at the
date of acquisition and was not incurred in anticipation thereof;
provided that (i) such Liens existed at the time such corporation
became a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any additional property
or assets of such corporation after the time such corporation
becomes a Subsidiary, and (iii) the amount of Indebtedness
secured thereby is not increased; and
(k) Liens (not otherwise permitted hereunder) which
secure obligations not exceeding (as to the Company and all
Subsidiaries) $25,000,000 in aggregate amount at any time
outstanding.
9.3 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution),
except that any Subsidiary of a Borrower may be merged or
consolidated with or into such Borrower (provided that (a) such
Borrower shall be the continuing or surviving corporation and (b)
in the case of a merger or consolidation of Reebok-UK with or
into the Company, the Company shall be the continuing or
surviving corporation) or with or into any one or more wholly
owned Subsidiaries of the Company (provided that the wholly owned
Subsidiary or Subsidiaries shall be the continuing or
surviving corporation).
9.4 Limitation on Sale of Assets. Convey, sell,
lease, assign, transfer or otherwise dispose of all or
substantially all of the property, business or assets (including,
without limitation, receivables and leasehold interests) of the
Company and its Subsidiaries taken as a whole, whether now owned
or hereafter acquired, in any single transaction or any series of
related transactions. Notwithstanding the foregoing provisions
of this subsection 9.4, the trademark "Reebok" shall at all times
be subject to a valid license agreement in favor of the Company
having terms substantially similar to the License Agreement
described in subsection 8.5(b).
9.5 Limitation on Transactions with Affiliates. Enter
into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of
any service, with any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary
course of the Company's or such Subsidiary's business and (c)
upon fair and reasonable terms no less favorable to the Company
or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an
Affiliate (it being understood that such fairness and
reasonableness shall, in the case of arrangements with joint
ventures with unaffiliated third parties, be determined in the
context of all arrangements between the Company and its
Subsidiaries, on the one hand, and such joint venture, on the
other hand).
9.6 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Company to end on a day other than the
Saturday nearest to December 31.
9.7 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for
(a) the design and marketing of sports, leisure and fitness
products and services, including footwear, apparel, accessories,
equipment and videos, (b) the design and marketing of footwear,
apparel and accessories for non-athletic use, (c) the businesses
in which the Company and its Subsidiaries are engaged on the date
hereof and businesses of a similar type and (d) other activities
relating thereto.
SECTION 10. GUARANTEE
10.1 Guarantee. In order to induce the Lenders and
the Administrative Agent to execute and deliver this Agreement
and to make the Loans hereunder, and in consideration
thereof:
(a) The Company hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit
of the Lenders, the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or
otherwise) of the UK Obligations. The Company further agrees to
pay any and all expenses (including, without limitation, all
reasonable fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or by the Lenders
in enforcing, or obtaining advice of counsel in respect of, any
of their rights under this Section 10. Without limiting the
generality of the foregoing, the Company's liability shall extend
to all amounts that constitute part of the UK Obligations and
would be owed by Reebok-UK but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving
Reebok-UK. This Guarantee shall remain in full force and effect
until the UK Obligations have been paid in full and the UK Term
Loan Commitments have been utilized or terminated,
notwithstanding that from time to time prior thereto Reebok-UK
may be free from any UK Obligations.
(b) The Company agrees that whenever, at any time, or
from time to time, it shall make any payment to the
Administrative Agent or any Lender on account of its liability
under this Section 10, it will notify the Administrative Agent or
such Lender in writing that such payment is made under this
Section 10 for such purpose. No payment or payments
made by Reebok-UK or any other Person or received or collected by
the Administrative Agent or any Lender from Reebok-UK or any
other Person by virtue of any action or proceeding or any set-off
or appropriation or application, at any time or from time to
time, in reduction of or in payment of the UK Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of the Company hereunder which shall remain obligated
hereunder, notwithstanding any such payment or payments (other
than payments made by or received or collected from the Company
in respect of the UK Obligations) until the date upon which the
UK Obligations have been paid in full and the UK Term Loan
Commitments have been utilized or terminated.
10.2 Right of Set-Off. Upon the occurrence and
continuance of any Event of Default, the Administrative Agent and
each Lender are hereby irrevocably authorized by the
Company at any time and from time to time without notice to the
Company, any such notice being hereby waived by the Company, to
set off and appropriate and apply any and all deposits (general
or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by
the Administrative Agent or such Lender to or for the credit or
the account of the Company, or any part thereof in such amounts
as the Administrative Agent or such Lender may elect, on
account of the liabilities of the Company hereunder and claims of
every nature and description of the Administrative Agent or such
Lender against the Company, in any currency, whether arising
hereunder or any other Loan Document or otherwise, as the
Administrative Agent or such Lender may elect, whether or not the
Administrative Agent or such Lender has made any demand for
payment and although such liabilities and claims may be
contingent or unmatured. The Administrative Agent and each
Lender shall notify the Company promptly of any such set-off made
by it and the application made by it of the
proceeds thereof; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of the Administrative Agent and each Lender under
this subsection are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which
the Administrative Agent or such Lender may have.
10.3 No Subrogation. Notwithstanding any payment or
payments made by the Company hereunder, or any set-off or
application of funds of the Company by the Administrative Agent
or any Lender, the Company shall not be entitled to be subrogated
to any of the rights of the Administrative Agent or any Lender
against Reebok-UK or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender
for the payment of the UK Obligations, nor shall the Company seek
or be entitled to seek any contribution or reimbursement from
Reebok-UK in respect of payments made by the Company hereunder,
until the UK Obligations have been paid in full. If any amount
shall be paid to the Company on account of such subrogation
rights at any time when all of the UK Obligations shall not have
been paid in full, such amount shall be held by the
Company in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Company, and shall, forthwith
upon receipt by the Company, be turned over to the
Administrative Agent in the exact form received by the Company
(duly indorsed by the Company to the Administrative Agent, if
required), to be applied against the UK Obligations,
whether matured or unmatured, in such order as the Administrative
Agent may determine.
10.4 Amendments, etc. The Company shall remain
obligated hereunder notwithstanding that, without any reservation
of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the UK
Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of
the UK Obligations continued, and the UK Obligations, or the
liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or
any Lender, and this Agreement, any other Loan Document and any
other documents executed and delivered in connection herewith or
therewith may be amended, modified, supplemented or terminated,
in whole or in part, as the Lenders may deem advisable from time
to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender
for the payment of the UK Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative
Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as
security for the UK Obligations or pursuant to this Section 10 or
any property subject thereto.
10.5 Guarantee Absolute and Unconditional. The
Company waives any and all notice of the creation, renewal,
extension or accrual of any of the UK Obligations and notice of
or proof of reliance by the Administrative Agent or any Lender
upon the guarantee contained in this Section 10 or acceptance of
the guarantee provisions of this Section 10; the UK Obligations,
and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon the guarantee
contained in this Section 10; and all dealings between Reebok-UK
or the Company, on the one hand, and the Administrative Agent and
the Lenders, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 10. The Company waives (to
the extent permitted by law) diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon
Reebok-UK or the Company with respect to the UK Obligations. The
guarantee contained in this Section 10 shall be construed as a
continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this
Agreement, any other Loan Document or any of the documents
executed in connection herewith or therewith, any of the UK
Obligations or any collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any
defense (including, without limitation, any statute of
limitations), set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or
be asserted by Reebok-UK against the Administrative Agent or any
Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of Reebok-UK or the Company) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of Reebok- UK for the UK Obligations, or of the
Company under the guarantee contained in this Section 10, in
bankruptcy or in any other instance. When the Administrative
Agent or any Lender is pursuing its rights and remedies hereunder
against the Company, the Administrative Agent or any Lender may,
but shall be under no obligation to, pursue such rights and
remedies as it may have against Reebok-UK or any other Person or
against any collateral security or guarantee for the UK
Obligations or any right of offset with respect thereto, and any
failure by the Administrative Agent or any Lender to pursue such
other rights or remedies or to collect any payments from
Reebok-UK or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of
offset, or any release of Reebok-UK or any such other Person or
of any such collateral security, guarantee or right of
offset, shall not relieve the Company of any liability hereunder,
and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against the Company.
10.6 Reinstatement. The guarantee contained in this
Section 10 shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of
any of the UK Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Reebok-UK or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, Reebok-UK or any substantial part
of its property, or otherwise, all as though such payments had
not been made.
10.7 Payments. The Company hereby agrees that the
amounts payable by the Company hereunder will be paid to the
Administrative Agent without set-off or counterclaim in Dollars
at the office of the Administrative Agent listed in subsection
13.2 or at such other office as the Administrative Agent shall
designate in writing to the Company.
SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) Either Borrower shall fail to pay any principal of
any Loan when due in accordance with the terms thereof or hereof;
or either Borrower shall fail to pay any interest on any Loan, or
any other amount payable hereunder, within five Business Days
after any such interest or other amount becomes due in accordance
with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made
by either Borrower herein or in any other Loan Document or which
is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with
this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in Section 9; or
(d) Either Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a)
through (c) of this Section 11), and such default shall continue
unremedied for a period of 30 days after the earlier of (i) the
date upon which an executive officer of either Borrower has
actual knowledge thereof and (ii) the date upon which the
Administrative Agent or any Lender gives notice to the Company
thereof; or
(e) The Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any
Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of grace (not to exceed
60 days), if any, provided in the instrument or agreement under
which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of
such Guarantee Obligation (or a trustee or Administrative Agent
on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice or the passage
of time if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall
exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any
default or other event or condition referred to in this paragraph
shall have occurred shall be equal to at least $10,000,000; or
(f) (i) Either Borrower or any Material Subsidiary
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets,
or either Borrower or any Material Subsidiary shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against either Borrower or any Material
Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against either
Borrower or any Material Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof;
or (iv) either Borrower or any Material Subsidiary shall take any
action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) either Borrower or any Material
Subsidiary shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become
due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Company or
any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of
a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of
the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other adverse
event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if
any, could reasonably be expected to involve an aggregate
amount of liability to the Company or any Material Subsidiary in
excess of $10,000,000; or
(h) One or more judgments or decrees shall be entered
against the Company, Reebok-UK or any Material Subsidiaries
involving in the aggregate a liability (not paid or fully covered
by insurance) of $10,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) the guarantee set forth in Section 10 shall cease,
for any reason, to be in full force and effect or the Company
shall so assert; or
(j) (i) Any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended, but other than the Fireman Group) (A) shall have
acquired beneficial ownership of 20% or more of any outstanding
class of Capital Stock having ordinary voting power in the
election of directors of the Company or (B) shall obtain the
power (whether or not exercised) to elect a majority of the
Company's directors or (ii) the Board of Directors of the Company
shall not consist of a majority of Continuing Directors;
"Continuing Directors" shall mean the directors of the Company on
the date hereof and each other director, if such other director's
nomination for election to the Board of Directors of the Company
is recommended by a majority of the then Continuing Directors; or
(k) the Company shall not own, directly or indirectly,
all of the issued and outstanding Capital Stock (other than
directors' qualifying shares and one share of such Capital Stock
which is owned of record by Credit Suisse First Boston
Corporation) of Reebok-UK;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) of this
Section 11 with respect to a Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Agreement shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall,
by notice to the Borrowers declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the
Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be
due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in
this Section 11, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 12. THE AGENTS
12.1 Appointment. (a) Each Lender hereby irrevocably
designates and appoints Credit Suisse First Boston as the
Administrative Agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the
Administrative Agent.
(b) Notwithstanding anything to the contrary contained
in this Agreement, the parties hereto hereby agree that the
Documentation Agent and the Co-Agents shall have no rights,
duties, responsibilities or liabilities in their respective
capacities as such and that no Co-Agent shall have the authority
to take any action hereunder in its capacity as such.
12.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other
Loan Documents by or through Administrative Agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any Administrative Agents or attorneys in-fact
selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors,
employees, Administrative Agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such
Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by either Borrower
or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure
of a Borrower to perform its obligations hereunder or thereunder.
The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of either Borrower.
12.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without
limitation, counsel to either Borrower), independent
accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless
a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and
the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
12.5 Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives
such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless
and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
12.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors,
employees, Administrative Agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrowers, shall be deemed to
constitute any representation or warranty by the Administrative
Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and made its own decision to
make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition
and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the
Borrowers which may come into the possession of the
Administrative Agent or any of its officers, directors,
employees, Administrative Agents, attorneys-in-fact or
Affiliates.
12.7 Indemnification. The Lenders agree to indemnify
each of the Administrative Agent and the Documentation Agent in
its respective capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the
Borrowers to do so), ratably according to their respective
Commitment Percentages in effect on the date on which
indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative
Agent or the Documentation Agent (as the case may be) in any way
relating to or arising out of, the Commitments, this Agreement,
any of the other Loan Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by the
Administrative Agent or the Documentation Agent (as the case may
be) under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to
the extent resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Documentation Agent
(as the case may be). The agreements in this subsection 12.7
shall survive the payment of the Loans and all other amounts
payable hereunder.
12.8 Agents in their Individual Capacities. The
Administrative Agent, the Documentation Agent, each Co-Agent and
each of their respective Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with
each Borrower as though the Administrative Agent, the
Documentation Agent or such Co-Agent (as the case may be) were
not the Administrative Agent, the Documentation Agent or a
Co-Agent (as the case may be) hereunder and under the other Loan
Documents. With respect to its Loans made or renewed by it and
any Note issued to it, the Administrative Agent, the
Documentation Agent and each Co-Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the
Administrative Agent, the Documentation Agent or a Co-Agent (as
the case may be), and the terms "Lender" and "Lenders" shall
include the Administrative Agent, the Documentation Agent and
each Co-Agent in its respective individual capacity.
12.9 Successor Administrative Agent; Resignation of
Documentation Agent. (a) The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required
Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor
Administrative Agent (provided that it shall have been approved
by the Company), shall succeed to the rights, powers and duties
of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall
mean such successor Administrative Agent, and the former
Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of
the Loans.
(b) The Documentation Agent may resign as
Documentation Agent upon 10 days' notice to the Lenders. Upon
any such resignation of the Documentation Agent, no successor
Documentation Agent shall be appointed hereunder.
(c) After any retiring Administrative Agent's or
Documentation Agent's resignation as Administrative Agent or
Documentation Agent (as the case may be), the provisions of this
Section 12 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent or
Documentation Agent (as the case may be) under this Agreement and
the other Loan Documents.
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. Neither this Agreement
nor any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with
the provisions of this subsection 13.1. The Majority Lenders
may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with
the Company (and, to the extent that it is directly affected
thereby, Reebok-UK) written amendments, supplements or
modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other
Loan Documents or changing in any manner the rights of the
Lenders or of the Borrowers hereunder or thereunder or (b) waive,
on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or of any installment thereof, or reduce the
stated rate of any interest or fee payable hereunder or extend
the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitments, in
each case without the consent of each Lender directly affected
thereby;
(ii) amend, modify or waive any provision of this
subsection 13.1, or reduce the percentage specified in the
definition of Required Lenders or Majority Lenders, or
consent to the assignment or transfer by a Borrower of any
of its rights and obligations under this Agreement and the other
Loan Documents, or release the guarantee provided for in Section
10, in each case without the written consent of all the Lenders;
(iii) amend, modify or waive any provision of Section
12 without the written consent of the then Administrative Agent
and (to the extent that such amendment, modification or waiver
directly affects the rights or obligations of the Documentation
Agent) the Documentation Agent.
Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall
be binding upon the Borrowers, the Lenders, the Administrative
Agent and all future holders of the Loans. In the case of any
waiver, the Borrowers, the Lenders and the Administrative Agent
shall be restored to their former positions and rights hereunder
and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right
consequent thereon.
13.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by facsimile transmission) and,
unless otherwise expressly provided herein, shall be deemed to
have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or (c)
in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of
the Borrowers and the Administrative Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective
parties hereto:
The Company: Reebok International Ltd.
100 Technology Center Drive
Stoughton, Massachusetts 02072
Attention: Leo Vannoni, Treasurer
Fax: 617/341-1532
with a copy to: Attention: General Counsel
Fax: 617/341-1532
Reebok-UK: Reebok International Limited
Chaplin House
Moorhall Road, South Harefield
Uxbridge, Middlesex UB9 6NS
Attention: Treasury Manager
Fax: 011-44-1895-825-854
with a copy to: Reebok International Ltd.
100 Technology Center Drive
Stoughton, Massachusetts 02072
Attention: Leo Vannoni, Treasurer
Fax: 617/341-1532
The Administrative
Agent: Credit Suisse First Boston
11 Madison Avenue
New York, New York 10010
Attention: Julia Kingsbury
Fax: 212/325-8304
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2,
3.2, 4.2, 5.3, 5.4, 5.5 or 5.10 shall not be effective until
received.
13.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers
and privileges provided by
law.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the
Loans hereunder.
13.5 Payment of Expenses and Taxes. The Company
agrees (a) to pay or reimburse the Administrative Agent for all
of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay
or reimburse each Lender, the Documentation Agent and the
Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights
under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and
disbursements of counsel to each Lender, of counsel to the
Documentation Agent and of counsel to the Administrative Agent,
(c) to pay, indemnify, and hold each Lender, each Co-Agent, the
Documentation Agent and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, each
Co-Agent, the Documentation Agent and the Administrative Agent
harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement,
the other Loan Documents or the use of the proceeds of
the Loans and any such other documents, including, without
limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Company, any of its
Subsidiaries or any of the Properties (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"),
provided that the Company shall have no obligation hereunder to
the Administrative Agent, the Documentation Agent, any
Co-Agent or any Lender with respect to indemnified liabilities to
the extent arising from the gross negligence or willful
misconduct of the Administrative Agent, the Documentation
Agent, such Co-Agent or such Lender. The agreements in this
subsection 13.6 shall survive repayment of the Loans and all
other amounts payable hereunder.
13.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Borrowers, the Lenders, the Administrative
Agent and their respective successors and assigns, except that
neither Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other financial
institutions ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan
Documents; provided that any Lender which sells such
participating interests to a Participant which is not a
commercial bank, savings bank or finance company
shall give notice to the Company, identifying such Participant,
promptly following the consummation of such sale. In the event
of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents,
and the Company and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the
other Loan Documents. No Lender shall be entitled to create in
favor of any Participant, in the participation agreement pursuant
to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve
any matter relating to this Agreement or any other Loan Document
except for those specified in clauses (i) and (ii) of
the proviso to subsection 13.1. The Borrowers agree that if
amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement,
provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 13.7(a) as
fully as if it were a Lender hereunder. The Borrowers also agree
that each Participant shall be entitled to the benefits of
subsections 5.12, 5.13 and 5.14 with respect to its participation
in the Commitments and the Loans outstanding from time to time
as if it was a Lender; provided that, in the case of subsection
5.13, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time and from time to time assign to any Lender or
any affiliate thereof or, with the consent of the Company and the
Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial
institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit E, executed by such Assignee, such assigning
Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the
case of any such assignment to an additional bank or financial
institution, (x) the sum of the aggregate principal amount of the
Domestic Term Loans (or, prior to the Closing Date, the Domestic
Term Loan Commitment), the aggregate principal amount of the UK
Term Loans (or, prior to the Closing Date, the UK Term Loan
Commitment) and the aggregate amount of the Revolving Credit
Commitment being assigned are not less than$25,000,000 (or such
lesser amount as may be agreed to by the Company and the
Administrative Agent) and (y) if such assignment is of less than
all of the rights and obligations of the assigning Lender, the
sum of the aggregate principal amount of the Domestic Term Loans
(or, prior to the Closing Date, the Domestic Term Loan
Commitment), the UK Term Loans (or, prior to the Closing
Date, the UK Term Loan Commitment) and the aggregate amount of
the Revolving Credit Commitment remaining with the assigning
Lender are not less than $10,000,000 (or such lesser amount as
may be agreed to by the Company and the Administrative Agent).
Upon such execution, delivery, acceptance and recording (and the
payment of the registration and processing fee described in
clause (e) below), from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this paragraph (c) and
paragraph (e) of this subsection, the consent of the Company
shall not be required for any assignment which occurs at any time
when any of the events described in Section 11(f) shall have
occurred and be continuing. Notwithstanding anything to the
contrary contained herein, any assignment made pursuant to this
clause (c) shall be of a ratable share of the UK Term Loans, the
Domestic Term Loans and the Revolving Credit Commitment of the
assigning Lender.
(d) The Administrative Agent, on behalf of the
Borrowers, shall maintain at the address of the Administrative
Agent referred to in subsection 13.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register")
for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent and the Lenders may (and, in
the case of any Loan or other obligation hereunder not evidenced
by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the
other Loan Documents, notwithstanding any notice to the contrary.
Any assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof,
by the Company and the Administrative Agent), together with
payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on
the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of
such acceptance and recordation to the Lenders and the
Company; provided that (x) no such fee shall be payable with
respect to any assignment from an assigning Lender to an
affiliate thereof and (y) such fee shall be payable by the
Company with respect to any assignment effected at the request of
the Company pursuant to subsection 5.16.
(f) Each Borrower authorizes each Lender to disclose
to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning such Borrower and its Affiliates
which has been delivered to such Lender by or on behalf of such
Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection
with such Lender's credit evaluation of the Borrowers and their
respective Affiliates prior to becoming a party to this
Agreement.
(g) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection 13.6
concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
13.7 Adjustments; Set-off. (a) If any Lender (a
"benefitted Lender") at any time shall receive any payment of all
or part of its Domestic Term Loans, UK Term Loans or its
Revolving Credit Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in subsection 11(f), or otherwise), in a
greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other
Lender's Domestic Term Loans, UK Term Loans or Revolving Credit
Loans (as the case may be), or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders such
portion of each such other Lender's Domestic Term Loan, UK Term
Loan or Revolving Credit Loans (as the case may be), or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
Lenders; and if after taking into account such sharing the
benefitted Lender continues to have access to additional funds of
or collateral granted by a Borrower for application on account of
its debt, then the benefitted Lender shall use such funds or
collateral to reduce indebtedness of such Borrower held by it and
share such payments and the benefits of such collateral with the
other Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. Each Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may
exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right,
without prior notice to either Borrower, any such notice
being expressly waived by each Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by a
Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any
branch, agency or (to the extent permitted by applicable law)
banking affiliate thereof to or for the credit or the account of
such Borrower. Each Lender agrees promptly to notify such
Borrower and the Administrative Agent after any such set-off
and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application.
13.8 Judgment Currency. The obligations of Reebok-UK
in respect of the UK Term Loans and amounts owing on account
thereof shall, notwithstanding any judgment in a currency (the
"judgment currency") other than Dollars, be discharged only to
the extent that on the Business Day following receipt by the
relevant Lender of any sum adjudged to be so due in the judgment
currency such Lender may in accordance with normal banking
procedures purchase Dollars with the judgment currency; if the
amount of Dollars so purchased is less than the sum originally
due to such Lender in Dollars, Reebok-UK agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify
such Lender against such loss, and if the amount of Dollars so
purchased exceeds the sum originally due to any party to this
Agreement, such Lender agrees to remit to Reebok-UK such excess.
13.9 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile transmission), and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
13.10 Confidentiality. (a) Each Lender hereby
agrees to maintain the confidentiality of all "Confidential
Information" and agrees that it shall not disclose such
"Confidential Information" to third parties without the prior
consent of the Company, other than disclosure (i) on a
confidential basis to directors, officers, employees, legal
counsel, accountants and other professional advisors of such
Lender, (ii) to other Lenders and any Participant of such Lender,
(iii) to regulatory officials having jurisdiction over such
Lender, (iv) as required by law or legal process or in connection
with any legal proceeding to which such Lender is a party or is
otherwise subject, (v) to any Transferee or prospective
Transferee of such Lender (provided that such Transferee or
prospective Transferee shall have agreed, in writing, to be
subject to the provisions of this subsection 13.10) or (vi) on a
confidential basis to affiliates of such Lender who reasonably
could be expected to have a need to know such information in
connection with the administration by such Lender of this
Agreement and its extensions of credit hereunder.
(b) For purposes of this subsection 13.10, the term
"Confidential Information" shall mean all material, non-public
information which is received by such Lender from the Company or
any of its Subsidiaries and is conspicuously identified as being
"Confidential", other than (i) any such information which, at the
time of delivery or thereafter, becomes generally available to
the public other than as a result of a disclosure by such Lender,
(ii) any such information which was available to such Lender
prior to its disclosure to such Lender by the Company and its
Subsidiaries and (iii) any such information which becomes
available to such Lender from a source other than the Company and
its Subsidiaries (provided that such source is not known to such
Lender to be (x) bound by a confidentiality agreement with the
Company and its Subsidiaries or (y) otherwise prohibited from
transmitting the information to such Lender by a contractual,
legal or fiduciary obligation).
13.11 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
13.12 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrowers, the
Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.
13.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
13.14 Submission To Jurisdiction; Waivers. Each
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Company (on its own behalf
or as process agent for Reebok-UK) at its address set forth in
subsection 13.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law
or shall limit the right to sue in any other jurisdiction;
and
(e) waives, except in the case of extreme bad faith
(and otherwise to the maximum extent not prohibited by law), any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection 13.14 any special,
exemplary, punitive or consequential damages.
13.15 Acknowledgements. Each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to such Borrower
arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative
Agent and Lenders, on one hand, and the Borrowers, on the other
hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and
the Lenders.
13.16 WAIVERS OF JURY TRIAL. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWERS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
REEBOK INTERNATIONAL LTD.
By: /s/ Leo S. Vannoni
Title: Treasurer
REEBOK INTERNATIONAL LIMITED
By: /s/ Leo S. Vannoni
Title: Director
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: /s/ Ira Lubinsky
Title: Vice President
By: /s/ Sean Bernard
Title: Assistant Vice President
CITIBANK, N.A., as Documentation Agent
and as a Lender
By: /s/ Richard F. Kurth
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Christopher G. Cunningham
Title: Director
By: /s/ Ira Lubinsky
Title: Vice President
BANK OF MONTREAL, as a Co-Agent and as a
Lender
By: /s/ Brian L. Banke
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH, as a
Co-Agent and as a Lender
By: /s/ Robert Ivosevich
Title: Senior Vice President
FLEET NATIONAL BANK, as a Co-Agent and
as a Lender
By: /s/ Roger C. Boucher
Title: Vice President
THE SANWA BANK, LIMITED, New York
Branch, as a Co-Agent and as a Lender
of Domestic Term Loans and Revolving
Credit Loans
By: /s/ Yutaka Higashino
Title: Senior Vice President
THE SANWA BANK, LIMITED, London Branch,
as a Co-Agent and as a Lender of UK Term
Loans
By: /s/ Yutaka Higashino
Title: Senior Vice President
WACHOVIA BANK, N.A., as a Co-Agent and
as a Lender
By: /s/ Kathleen H. Reedy
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ James E. Davis
Title: Group Vice President
By: /s/ James S. Adelsheim
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ Ambrish D. Thanawala
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender of
Domestic Term Loans and of Revolving
Credit Loans
By: /s/ Terry Pitcher
Title: Vice President
SCOTIABANK (U.K.) LIMITED, as a Lender
of UK Term Loans
By: /s/ Barry G. Hodges
Title: Relationship Manager
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Patrick D. Bonebrake
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Richard L. Sted
Title: Senior Vice President
By: /s/ Richard Pace
Title: Vice President
CIBC INC.
By: /s/ Christopher P. Kleczkowski
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
BANK BOSTON N.A.
By: /s/ Peter Griswold
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Stephen E. McDonald
Title: First Vice President
THE FUJI BANK, LIMITED, NEW YORK BRANCH,
as a Lender of Domestic Term Loans and
Revolving Credit Loans
By: /s/ Toshiaki Yakura
Title: Senior Vice President
THE FUJI BANK, LIMITED, LONDON BRANCH,
as a Lender of UK Term Loans
By: /s/ Y. Hirashima
Title: Assistant General Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
S.p.A.
By: /s/ Gerard M. McKenna
Title: Vice President
By: /s/ Robert Wurster
Title: First Vice President
NATIONSBANK, N.A.
By: /s/ Susan Timmerman
Title: Senior Vice President
SOCIETE GENERALE
By: /a/ Alan Zinser
Title: Assistant Vice President
STANDARD CHARTERED BANK
By: /s/ John Biscette
Title: Assistant Vice President
By: /s/ Leonardo A. Tee
Title: Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: /s/ John C. Kissinger
Title: Joint General Manager
EXHIBIT 10.2
VOTED: That the amendment to the Reebok International
Ltd. 1994 Equity Incentive Plan to increase the
number of shares of Common Stock authorized for
issuance thereunder by 2,500,000, as set forth in
the Proxy Statement dated March 26, 1997, is
hereby approved and adopted.
EXHIBIT 10.3
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
Paul R. Duncan ("Executive") and Reebok International Ltd. (the
"Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in para-
graph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days of
such termination of employment a lump-sum cash payment
equal to 300% of the aggregate of (i) his then-current
annual base salary (or, if his base salary has been
reduced at any time after the Change of Control, his
base salary in effect prior to the reduction), (ii) his
target bonus for the then-current year or, if higher,
his bonus for the most recent calendar year ended
before the Change of Control, (iii) the amount of his
then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting prior to
termination. The payment will be made at the same time
that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for
a felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive
in the positions, with the titles, that he held immediately prior
to the Change of Control or downgrading of his responsibilities
or authority. If, following the Change of Control, the Company
is part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose to
have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls the
group as he held with the Company immediately prior to the Change
of Control.
(ii) Reduction of Executive's base salary or
failure in any year to pay to him a bonus at least equal to
his target bonus for the year in which the Change of Control
occurs.
(iii) Material reduction in the health, disability
or life insurance benefits that the Company was providing
Executive immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive
with the opportunity to participate in any executive compensation
or benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, prof it sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By: /s/ PAUL FIREMAN
Agreed:
/s/ PAUL R. DUNCAN
________________________________
Paul R. Duncan
EXHIBIT 10.4
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
James R. Jones, III ("Executive") and Reebok International Ltd.
(the "Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in
paragraph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days of
such termination of employment a lump-sum cash payment
equal to 300% of the aggregate of (i) his then-current
annual base salary (or, if his base salary has been
reduced at any time after the Change of Control, his
base salary in effect prior to the reduction), (ii) his
target bonus for the then-current year or, if higher,
his bonus for the most recent calendar year ended
before the Change of Control, (iii) the amount of his
then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting prior to
termination. The payment will be made at the same time
that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for
a felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive
in the positions, with the titles, that he held immediately prior
to the Change of Control or downgrading of his responsibilities
or authority. If, following the Change of Control, the Company
is part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose to
have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls the
group as he held with the Company immediately prior to the Change
of Control.
(ii) Reduction of Executive's base salary or
failure in any year to pay to him a bonus at least equal to his
target bonus for the year in which the Change of Control occurs.
(iii) Material reduction in the health, disability
or life insurance benefits that the Company was providing
Executive immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive
with the opportunity to participate in any executive compensation
or benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, prof it sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By: /s/ PAUL FIREMAN
Agreed:
/s/ JAMES R. JONES, III
James R. Jones, III
EXHIBIT 10.5
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
Angel Martinez ("Executive") and Reebok International Ltd. (the
"Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in
paragraph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days of
such termination of employment a lump-sum cash payment
equal to 300% of the aggregate of (i) his then-current
annual base salary (or, if his base salary has been
reduced at any time after the Change of Control, his
base salary in effect prior to the reduction), (ii) his
target bonus for the then-current year or, if higher,
his bonus for the most recent calendar year ended
before the Change of Control, (iii) the amount of his
then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting prior to
termination. The payment will be made at the same time
that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for
a felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive
in the positions, with the titles, that he held
immediately prior to the Change of Control or downgrading of his
responsibilities or authority. If, following the Change of
Control, the Company is part of a controlled group of entities,
Executive's responsibilities and authority will be deemed for
this purpose to have been reduced unless he is given and retains
the same responsibilities and authority with the entity that
controls the group as he held with the Company immediately prior
to the Change of Control.
(ii) Reduction of Executive's base salary or
failure in any year to pay to him a bonus at least equal to
his target bonus for the year in which the Change of Control
occurs.
(iii) Material reduction in the health,
disability or life insurance benefits that the Company was
providing Executive immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive
with the opportunity to participate in any executive compensation
or benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, prof it sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By:/s/ PAUL FIREMAN
Agreed:
/s/ ANGEL MARTINEZ
Angel Martinez
EXHIBIT 10.6
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
Robert Meers ("Executive") and Reebok International Ltd. (the
"Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in
paragraph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days of
such termination of employment a lump-sum cash payment
equal to 300% of the aggregate of (i) his then-current
annual base salary (or, if his base salary has been
reduced at any time after the Change of Control, his
base salary in effect prior to the reduction), (ii) his
target bonus for the then-current year or, if higher,
his bonus for the most recent calendar year ended
before the Change of Control, (iii) the amount of his
then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting
prior to termination. The payment will be made at the
same time that he receives his distribution from those
plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for a
felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive in
the positions, with the titles, that he held immediately prior to
the Change of Control or downgrading of his responsibilities or
authority. If, following the Change of Control, the Company is
part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose to
have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls the
group as he held with the Company immediately prior to the Change
of Control.
(ii) Reduction of Executive's base salary or failure in
any year to pay to him a bonus at least equal to his target bonus
for the year in which the Change of Control occurs.
(iii) Material reduction in the health, disability or
life insurance benefits that the Company was providing Executive
immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive with
the opportunity to participate in any executive compensation or
benefit plan or program that is then generally available to other
senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, prof it sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By: /s/ PAUL FIREMAN
Agreed:
/s/ ROBERT MEERS
Robert Meers
EXHIBIT 10.7
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
Barry Nagler ("Executive") and Reebok International Ltd. (the
"Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in
paragraph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days of
such termination of employment a lump-sum cash payment
equal to 300% of the aggregate of (i) his then-current
annual base salary (or, if his base salary has been
reduced at any time after the Change of Control, his
base salary in effect prior to the reduction), (ii) his
target bonus for the then-current year or, if higher,
his bonus for the most recent calendar year ended
before the Change of Control, (iii) the amount of his
then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting prior to
termination. The payment will be made at the same time
that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for
a felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive
in the positions, with the titles, that he held immediately prior
to the Change of Control or downgrading of his responsibilities
or authority. If, following the Change of Control, the Company
is part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose to
have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls the
group as he held with the Company immediately prior to the Change
of Control.
(ii) Reduction of Executive's base salary or
failure in any year to pay to him a bonus at least equal to
his target bonus for the year in which the Change of Control
occurs.
(iii) Material reduction in the health,
disability or life insurance benefits that the Company was
providing Executive immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive
with the opportunity to participate in any executive compensation
or benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, prof it sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By: /s/ PAUL FIREMAN
Agreed:
/s/ BARRY NAGLER
Barry Nagler
EXHIBIT 10.8
REEBOK INTERNATIONAL LTD.
Change of Control Agreement
AGREEMENT, made this 29th day of May, 1997, by and between
Kenneth I. Watchmaker ("Executive") and Reebok International Ltd.
(the "Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its shareholders for the Company to agree to provide benefits
under circumstances described below to Executive; and
WHEREAS, the Board recognizes that the possibility of a
change of control of the Company, followed by a termination of
the Executive's employment or a reduction in his responsibility
or compensation, is unsettling to the Executive and wishes to
make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control
of the Company; and
WHEREAS, the Board believes it important, should the Company
receive proposals from outside parties, to enable the Executive,
without being distracted by the uncertainties of his own
employment situation, to perform his regular duties,
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as
follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a
"group" (within the meaning of section 13(d) of the Securities
Exchange Act of 1934 (the "Act")), begins a tender or exchange
offer, circulates a proxy to the Company's shareholders, or takes
other steps to effect a "Change of Control" (as defined in
paragraph 3 below), Executive agrees that he will not voluntarily
leave the employ of the Company and will render the services
contemplated in the recitals to this Agreement until such Person
has terminated the efforts to effect a Change of Control or until
a Change of Control has occurred.
2. If, within 24 months following a Change of Control,
Executive's employment with the Company terminates other than as
a result of the death, total disability or retirement of the
Executive at or after his normal retirement date, (i) by the
Company other than for "Cause" (as defined in paragraph 4 below),
or (ii) by Executive for "Good Reason" (as defined in paragraph 4
below), then:
a. The Company will pay to Executive within 30 days
of such termination of employment a lump-sum cash
payment equal to 300% of the aggregate of (i) his
then-current annual base salary (or, if his base
salary has been reduced at any time after the
Change of Control, his base salary in effect prior
to the reduction), (ii) his target bonus for the
then-current year or, if higher, his bonus for the
most recent calendar year ended before the Change
of Control, (iii) the amount of his then-current
annual automobile allowance and (iv) the annual
cost of life insurance then furnished to him by
the Company.
b. All of Executive's outstanding stock options,
restricted shares and other similar incentive interests
and rights will become immediately and fully vested and
exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as
having three additional Years of Continuous Service.
The Company will, within 30 days of his termination,
pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present
value will be determined by applying the "applicable
mortality table" and "applicable interest rate" then in
effect for purposes of section 417(e)(3)(A) of the
Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum
cash payment, an amount equal to the difference, if
any, between (i) the total distribution that he
receives following his termination under the Company's
Profit-Sharing and Retirement Plan and its Excess
Benefits Plan and (ii) the total distribution that he
would have received under such plans had he accumulated
three additional Years of Service for Vesting prior to
termination. The payment will be made at the same time
that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate
fully, with no contribution to the cost required of him
or them, in all accident and health plans maintained or
sponsored by the Company immediately prior to the
Change of Control, or receive substantially the
equivalent coverage (or the full value thereof in cash)
from the Company, until the third anniversary of such
termination.
f. The Company will promptly reimburse Executive for any
and all legal fees and expenses incurred by him as a
result of such termination of employment, including
without limitation all fees and expenses incurred in
connection with efforts to enforce the provisions of
this Agreement (provided such efforts result in
Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this
Agreement if (i) any Person who does not currently own directly
or indirectly 10% or more of the combined voting power of the
Company's outstanding securities becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate
percentage of the combined voting power of the Company's then-
outstanding securities held by or for the benefit of Paul Fireman
and his family) of the combined voting power of the company's
then-outstanding securities, (ii) there is a change of control of
the Company of a kind which would be required to be reported
under Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Act (or a similar item in a similar schedule or form),
whether or not the Company is then subject to such reporting
requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office
immediately prior to such transaction or event constitute less
than a majority of the Board thereafter, or (iv) individuals who,
at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority
thereof, provided, however, that any director who is not in
office at the date hereof but whose election by the Board or
whose nomination for election by the Company's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or
whose election or nomination for election was previously so
approved shall be deemed to be a Continuing Director for purposes
of this Agreement.
Notwithstanding the foregoing provisions of this paragraph
3, a "Change of Control" will not be deemed to have occurred
solely because of (i) the acquisition of securities of the
Company (or any reporting requirement under the Act relating
thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out
or recapitalization of the Company in which Executive
participates as an equity investor.
4. a. "Cause" means only: conviction of the Executive for
a felony or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the
following:
(i) Failure by the Company to maintain Executive
in the positions, with the titles, that he held immediately prior
to the Change of Control or downgrading of his responsibilities
or authority. If, following the Change of Control, the Company
is part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose to
have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls the
group as he held with the Company immediately prior to the Change
of Control.
(ii) Reduction of Executive's base salary or
failure in any year to pay to him a bonus at least equal to his
target bonus for the year in which the Change of Control occurs.
(iii) Material reduction in the health, disability
or life insurance benefits that the Company was providing
Executive immediately prior to the Change of Control.
(iv) Failure by the Company to provide Executive
with the opportunity to participate in any executive compensation
or benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of
business more than 30 miles from the its location immediately
prior to the Change of Control.
5. In the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of
Executive, either under this Agreement or otherwise, will be
subject to the excise tax imposed by section 4999 of the Internal
Revenue Code or any successor provision ("section 4999"), the
Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment
(the "gross-up payment") to Executive. The gross-up payment will
be sufficient, after giving effect to all federal, state and
other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive
whole for all taxes (including withholding taxes) and any
associated interest and penalties, imposed under or as a result
of section 4999.
Determinations under this Section 5 will be made by
Ernst & Young unless Executive has reasonable objections to the
use of that firm, in which case the determinations will be made
by a comparable firm chosen by Executive after consultation with
the Company (the firm making the determinations to be referred to
as the "Firm"). The determinations of the Firm will be binding
upon the Company and Executive except as the determinations are
established in resolution (including by settlement) of a
controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment
or an additional gross-up payment, the Company and Executive will
cooperate fully in resolving the controversy with the Internal
Revenue Service. The Company will make or advance such gross-up
payments as are necessary to prevent Executive from having to
bear the cost of payments made to the Internal Revenue Service in
the course of, or as a result of, the controversy. The Firm will
determine the amount of such gross-up payments or advances and
will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The
Company will bear all expenses of the controversy and will gross
Executive up for any additional taxes that may be imposed upon
Executive as a result of its payment of such expenses.
6. If the Company is at any time before or after a Change
of Control merged or consolidated into or with any other
corporation or other entity (whether or not the Company is the
surviving entity), or if substantially all of the assets thereof
are transferred to another corporation or other entity, the
provisions of this Agreement will be binding upon and inure to
the benefit of the corporation or other entity resulting from
such merger or consolidation or the acquirer of such assets, and
this paragraph 6 will apply in the event of any subsequent merger
or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of
assets described above, nothing contained in this Agreement will
detract from or otherwise limit Executive's right to participate
or privilege of participation in any stock option or purchase
plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or
arrangement which may be or become applicable to executives of
the corporation resulting from such merger or consolidation or
the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of
assets described above, references to the Company in this
Agreement shall unless the context suggests otherwise be deemed
to include the entity resulting from such merger or consolidation
or the acquirer of such assets of the Company.
7. All payments required to be made by the Company
hereunder to Executive or his dependents, beneficiaries, or
estate will be subject to the withholding of such amounts
relating to tax and/or other payroll deductions as may be
required by law.
8. There shall be no requirement on the part of the
Executive to seek other employment or otherwise mitigate damages
in order to be entitled to the full amount of any payments and
benefits to which Executive is entitled under this Agreement, and
the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other
employment.
9. Nothing contained in this Agreement shall be construed
as a contract of employment between the Company and the
Executive, or as a right of the Executive to continue in the
employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the
Executive may, subject to the terms and conditions of this
Agreement, have the right to receive upon termination of his
employment the payments and benefits provided in this Agreement
and shall not be deemed to have waived any rights he may have
either at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement
may be made except in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement
shall be in lieu of payments and other benefits, if any, to which
Executive may be entitled under any other severance agreement or
severance plan of the Company.
The provisions of this Agreement shall be binding upon
and shall inure to the benefit of Executive, his executors,
administrators, legal representatives and assigns, and the
Company and its successors.
The validity, interpretation, and effect of this
Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
The Company shall have no right of set-off or
counterclaims, in respect of any claim, debt, or obligation,
against any payments to Executive, his dependents, beneficiaries
or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full
force and effect.
No right or interest to or in any payments or benefits
hereunder shall be assignable by the Executive; provided,
however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder
to the person or persons entitled thereto under his will or, in
the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate. The term
"beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such
amount, or if no beneficiary has been so designated, the legal
representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge, hypothecation, or set-off in respect
of any claim, debt, or obligation, or to execution, attachment,
levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified
in the immediately preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and
Executive have each caused this Agreement to be duly executed and
delivered as of the date set forth above.
REEBOK INTERNATIONAL LTD.
By: /s/ PAUL FIREMAN
Agreed:
/s/ KENNETH I. WATCHMAKER
Kenneth I. Watchmaker
REEBOK INTERNATIONAL LTD.
(Amounts in Thousands, Except Per Share Data)
Exhibit 11 - Statement RE: Computation of Per Share Earnings
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
__________________ ________________
1997 1996 1997 1996
____ ____ ____ ____
<S> <C> <C> <C> <C>
Primary
________________________________
Average shares outstanding 56,140 72,979 56,044 73,682
Net effect of dilutive stock options 2,010 943 2,270 858
_______ _______ _______ _______
Total 58,150 73,922 58,314 74,540
======= ======= ======= =======
Net income $20,322 $19,813 $60,506 $68,228
======= ======= ======= =======
Per share amount $ 0.35 $ 0.27 $ 1.03 $ .92
======= ======= ======= =======
Fully Diluted
________________________________
Average shares outstanding 56,140 72,979 56,044 73,682
Net effect of dilutive stock options 2,436 1,273 2,478 1,309
_______ _______ _______ _______
Total 58,576 74,252 58,522 74,991
======= ======= ======= =======
Net income $20,322 $19,813 $60,506 $68,228
======= ======= ======= =======
Per share amount $ .35 $ 0.27 $ 1.03 $ 0.91
======= ======= ======= =======
</TABLE>
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
JUNE 30, 1997 CONSOLIDATED BALANCE SHEET AND CONSOLIDATED STATEMENT OF
INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<CIK> 0000770949
<NAME> REEBOK INTERNATIONAL LTD.
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